CASE BRIEF Frank Errol Gibson v Attorney General [2010] CCJ 3 (AJ) Facts: Gibson alleged a breach in his

constitutional rights under the Barbados Constitution, if any person charged with a criminal offence, then unless withdrawn, the case shall be afforded a fair hearing within a reasonable time1, along with shall be given adequate time and facilities for the preparation of his defence2, and shall be afforded facilities to examine the person3. Gibson thereby requested a mandatory order compelling the State to provide the requisite facilities within a reasonable time, a permanent stay or dismissal of the charge and an award of damages. Procedural History: The High Court ruled that Gibson was entitled to a State funded facility, that being an expert odontologist, given Gibsons lack of means and also that the delay in trial was excessive and ordered the court to put measures in place to ensure a speedy trial. They also held that no damages should be awarded but Gibson was released on bail with one surety. The Court of Appeal on the other hand, held that to compel the State to fund the expert was against the separation of powers doctrine. On the issues of the delay to a fair trial and to have the charge permanently stayed or dismissed, the Court refused to give Gibson leave to argue on these grounds. The Court agreed with the trial judge however, that no damages should be awarded. Issue: Is it appropriate for a Barbados court, in a fit case, to order a permanent stay or dismissal of a charge purely for breach of the right to be tried within a reasonable time? Holding: No, on the facts of the case the court would not consider it appropriate to issue a permanent stay or dismissal of the charge only because of the unreasonable delay that has occurred to date. Gibson was granted bail and a surety of $10,000.00 on condition that he reports to the police station closest to his residence twice weekly and surrenders all travel documents pending completion of his trial or dismissal. The State was made to pay Gibsons costs fit for two counsels.

1 2

Section 18 (1) Section 18 (2) (c) 3 Section 18 (2) (e)

Reasoning: Section 18(1)4 gives three different and free-standing rights to any person charged with a criminal offence. For the accused person whose charge has not been withdrawn, the State is obliged to afford a hearing that is: a) fair; b) before an independent and impartial tribunal established by law, and c) held within a reasonable time.

The court disallowed leave to argue Gibsons right to be tried within a reasonable time (i.e. his reasonable time guarantee), as nothing was gained by its inclusion as a separate ground.

The second claim of further proceedings of the charge of murder should be permanently stayed or dismissed on account of the overall delay, was not an assertion of a right but rather a claim for a specific form of redress for a breach of a right, the right in question being the reasonable time guarantee. Using the Attorney Generals Reference No.2 of 2001 in distinguishing the precedent, it was brought out that the consequence of granting a permanent stay or dismissal based on unreasonable delay, in the view of the majority, was palatable. The court in this case however, was not faced with the same dilemma.

The court does not agree that a mere breach of the reasonable time guarantee could never yield a permanent stay or dismissal of the charge and that instead relief should be reserved only for instances where the trial will be unfair or the accused can show prejudice. Section 24(1) of the Constitution affords the court flexibility, power and a wide discretion in fashioning a remedy that is just and effective taking into account the public interest and the rights and freedoms of others.

Barbados Constitution