The State v Ikubolaje Nicol
Supreme Court Miscellaneous Application 1 of 2023, 30 January 2024, Hon Justice V M Solomon JSC
An important recent Supreme Court decision on the ongoing right to trial by Jury for murder cases in Sierra Leone, following abolition of the death penalty in 2021
Criminal Law - Murder - Jury trials - Whether right to a Jury trial remained following abolition of the death penalty in 2021 - Whether Attorney General had the discretion to request a trial by Judge alone - Discretion must be exercised fairly and reasonably - History of Jury trials in Sierra Leone - Right to Jury trial is a fundamental right of common law and remains in place for all those offences which once carried the death penalty - Guarantee of a fair trial fundamental to public confidence in the rule of law
Facts
The accused was charged with offence relating to the murder of Sinnah Kai Kargbo on 15 October 2022. The matter was committed to the High Court and assigned to Hon Mr Justice Adrian Fisher J. The State applied to have the trial conducted by Judge alone instead of by Judge and Jury, pursuant to s 144(2) of the Criminal Procedure Act 1965 and the Abolition of the Death Penalty Act 2021 (the “ADPA”). Counsel for the accused objected and claimed that it was mandatory for a murder trial to be tried by a Judge and Jury.
Held:
Prior to the Abolition of the Death Penalty Act 2021, the punishment for murder was death. The right to a Jury trial for capital offences was in part because of the consequences of conviction. While the ADPA abolished the death penalty, it did not abolish any of the procedures for the trial of such offences. The replacement of the death sentence by a sentence to life imprisonment with a minimum of 30 years is by no means a soft option. It is a rightly harsh and draconian sentence. The consequences and ramifications of a life imprisonment or a minimum 30 years’ sentence is to deprive the convicted of their freedoms and rights in much the same way as the death penalty did with the self-evident distinction that it does not deprive them of their right to life. It follws that that there should be no erosion of the safeguards and rights that were guaranteed to an accused facing the most serious of criminal offences. The issue of how an accused facing such offences is tried is therefore a constitutional issue that goes to the heart of a person’s constitutional and human rights. [Para 19]
The exercise of discretion relating to the conduct of criminal proceedings contained in s 27(8) of the Constitution cannot be challenged on the grounds that it has been exercised in a discriminatory way. However, this does not mean that the discretion is unfettered. Discretion though subjective should be exercised judiciously and not arbitrarily, and with caution considering all the circumstances, fairly and reasonably. As such, the exercise of discretion in capital cases must be reasonable, based on objective criteria and with proportionality. The use of discretionary powers and accused’s rights to a fair trial must be considered and balanced with protecting the public. Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; Civil Service Union v Minister for Civil Service [1984] 3 All ER 935; [1985] AC 374; Ramsden v Lee (1992) 2 All ER 204 and Gouriet v Union Post Office Workers (1977) 2 WLR 310 referred to. [Paras 21, 26]
As the guardian of the public interest, the Attorney General superintends prosecutions. He should prevent the criminal law being flouted. He is to be guided by two principles: that on the evidence there must be reasonable prospect of securing a conviction and that it is in the public interest to prosecute. Decisions to prosecute or not to prosecute or discontinue a prosecution or an abuse of process are subject to judicial review. A-G v Blake (Jonathan Cape Ltd, 3rd party) (1998) 1 All ER 833 referred to. [Para 24]
Under s 144(2) of the Criminal Procedure Act 1965, the Attorney-General’s discretion can only be exercised if he is is of the opinion that the general interest of justice would be served thereby. It was not clear what general interest of justice was served by applying for a Judge only trial in the present case. There was no evidence that similar applications had been made in other murder cases since the passing of the ADPA in 2021, nor had any distinction been made between this case and others that have preceeded it in the period post abolition of the death penalty. [Para 25]
The accused was entitled to the same treatment as others who have faced a murder charge since the abolition of the death penalty by the ADPA in 2021. There was no evidence of any greater risk to the public, any greater need to a trial by Judge alone, any issue which required a more specialist inquiry than a lay man could make, or any risk or actual incident of jury tampering. As such, there was no demonstrable risk to the adminstration of justice in having a Judge and Jury trial. To seek the trial of the accused differently without reasonable justification would be to deny him his rights under the Constitution. [Para 27]
The right to a Jury trial is a fundamental right of common law. A fair trial for murder prior to the abolition of the death penalty in 2021 would require a trial by Judge and Jury. This right has not been abrogated by the ADPA Act, which abolished the death sentence and not the mode of trial for murder. If Parliament wanted to curtail the right to a Jury trial and grant the Attorney General the discretion he sought to exercise, it would have done so. The right to a Jury trial remains in place for all those offences which once carried the death penalty [Paras 28, 30, 31, 33]
The interest of justice is best served when all prosecutions are conducted and seen to be conducted objectively, fairly, impartially and with integrity to help secure justice for victims, witnesses, accused persons and the general public. It is not the role of a prosecutor to seek a conviction at all costs. It is imperative that prosecutors act in a manner that guarantees a fair trial and maintains public confidence in the rule of law. [Paras 29, 31]
Legislation referred to
Abolition of the Death Penalty Act 2021
Constitution of Jamaica s 94(3)(a)
Constitution of Sierra Leone ss 23(1), 27(2), 27(8), 64(3), 108(7), 127
Courts Act 1960 (Cap 7) ss 14, 15
Criminal Procedure Act 1965 ss 44, 45, 144(2), 145, 194-201
Jurors and Assessors Act 1960 (Cap 38) ss 27, 39, 40, 41
Treason and State Offences Act 1963
Cases referred to
I think Sierra Leone remains one of the few countries in Africa to retain trial by jury?