S v Abraham Lavaly & Others (SC 1 of 2017) [2020] SLSC 10 (10 August 2020)

SC Case 1/2017 INTHE SUPREME COURT OF SIERRA LEONE IN_THE MATTER_OF SECTIONS 18(1), 20(1), 23(1), 124 AND 127 OF THE CONSTITUTION OF SIERRA LEONE 1991; OF SECTION 74 OF THE COURTS ACT

AND ‘THE CRIMINAL PROCEDURE ACT 1965 AND INTHE MATTER OF AN APPLICATION FOR THE UNCONDITIONAL RELEASE OF 10 ACCUSED PERSONS AWAITING JUDGMENT INTHE CASE OF: ~ THE STATE vs 1, ABRAHAM LAVALY :

2. INAH JAMES 5

3. ADETUNJI DESMOND COLE

4. BAKIE MINAH

5. EVERTON FAULKNER

6. ABU BAKARR KAMARA

7. ISMAIL DAINKEH

8. ISATA OSAIO KAMARA

9. SHARKA KPANABUM : 10.ABDUL MUTALID KAMARA AND IN THE MATTER OF: 1, ABRAHAM LAVALY - PLAINTIFFS

2. INAH JAMES

3. ADETUNJI DESMOND COLE

4. BAKIE MINAH

5. EVERTON FAULKNER

6. ABU BAKARR KAMARA :

7. ISMAIL DAINKEH 8, ISATA OSAIO KAMARA

9. SHARKA KPANABUM 10.ABDUL MUTALID KAMARA AND : ‘THE STATE RESPONDENT

Coram

‘THE HON MR JUSTICE N. C. BROWNE-MARKE, JUSTICE OF THE SUPREME

couRT

‘THE HON MR JUSTICE E. E. ROBERTS, JUSTICE OF THE SUPREME COURT

‘THE HON MS JUSTICE V. M. SOLOMON, JUSTICE OF THE SUPREME COURT

‘THE HON MS JUSTICE G. THOMPSON, JUSTICE OF THE SUPREME COURT

THE HON MR JUSTICE A. S. SESAY, JUSTICE OF THE SUPREME COURT

COUNSEL:

MS TUMA JABBIE for the Plaintiffs

MR CALVIN MANTSEBO for the Respondent

JUDGMENT DELIVERED THE DAY OF AUGUST, 2020

THOMPSON, JSC

1. My Lords, I have had the advantage of reading the speech of my Learned Brother Browne-Marke JSC with whom I agree. I gratefully adopt the facts as set out by him. I agree with my brother that the essence of the submissions advanced by the Plaintiffs in this matter is that the inordinate delay and circumstances that have prevented a judgment from being delivered in this case, through no fault of the Plaintiffs, {accused persons), are such that the proceedings should now be stayed as an abuse of process. Before I address this issue, let me say that for my part I find submissions referring to the learned trial judge as a foreign judge to be unhelpful and inappropriate. This can easily be demonstrated by posing the question whether the current circumstances would have been acceptable if he was a Sierra Leonean judge who decided to retire abroad before delivering the judgment. It ‘would be a rare case indeed in which the nationality of a judge qualified to practice in Sierra Leone would be a relevant matter to be raised as it has been in this appeal. The only relevance of the fact that he is a foreigner is to give context to the background facts that precipitated this matter.

2. It is expected that those appearing before this court will ensure that they are able to assist the court by drawing it’s attention to relevant Jurisprudence and authorities on all grounds relied on. Abuse of Process is briefly mentioned in paragraph C(vi) of the Plaintiffs’ Statement of Case, but was not specifically argued. This is unfortunate, since that is what lies at the heart of this case. It is clear that the

7 circumstances which give rise to the Plaintiffs’ application for relief are wholly exceptional. There is no reasonable prospect of the trial judge

* delivering his judgment and it is wholly unrealistic for a re-trial before

a different judge to take place. The question for this court therefore_is

“whether in those circumstances the proceedings should be stayed. As my Learned Brother states in paragraph 42 of his judgment, “the Plaintiffs’ contention here is that they have been subjected to an abuse of process, in that judgment is outstanding in their matter, and that there is no likelihood that it would be delivered. The challenge is not, in my view, to a fair hearing, but rather, to unreasonable delay in having the matter resolved one way or the other.”

3. Although a stay for abuse of process is an exceptional remedy, it is neither new nor unusual in many common law jurisdictions. The fact that it was not satisfactorily argued before us illustrates that that there is a need for this court to provide some guidance for judges and practitioners alike. In doing so I stress that it is an exceptional remedy and it will only be granted when the trial process itself is not capable of curing any potential unfairness. Abuse of process arguments should not be put forward unless justified. If the application to stay for abuse of process is on the grounds of delay, it will not succeed unless, exceptionally, a fair trial is no longer possible owing to prejudice to the defendants (or accused persons) occasioned by the delay which cannot fairly be addressed in the normal trial process. The nationality of the Judge, the presence or absence of an explanation or justification for the delay is only relevant insofar as it bears on that question.

4, The genesis of Abuse of Process is in fact the common law, which empowers the court to use its discretionary power to ensure a fair trial. ‘The courts have a duty to ensure that all,who appear before it, are treated fairly and suffer no injustice (See Bonnelly v DPP [1964] AC 1254). Similarly, the courts must protect the law and its processes and procedures from abuse. I say at the outset that there cannot be a single definition of Abuse of Process nor a single example that covers all instances of abuse. (see Rhett Allen Fuller (Appellant) v The Attorney

General of Belize (Respondent) [2011] UKPC 23 per Lord Phillips). I adopt the words of Lord Clyde in R v Martin (Alan) [1998] AC 917, when he stated that: “No single formulation will readily cover all cases, but there must be something so gravely wrong as to make it unconscionable that a trial should go forward, such as some fundamental disregard for basic human rights or some gross neglect of the elementary prirtciples of fairness.” In the instant case we are concerned with abuse of process in criminal proceedings. Different considerations may arise when : dealing with other areas of law.

‘The Legal Framework

5. The doctrine of abuse of process was comprehensively considered by the UK Supreme Court and the Judicial Committee of the Privy Council in Rv Maxwell [2010] UKSC 48, [2011] 4 All ER 941, [2011] 1 WLR 1837 and Warren v Her Majesty's Attorney General of the Bailiwick of Jersey [2011] UKPC 10, [2012] 1 AC 22, [2011] 2 All ER 513). Before commenting on those decisions, I want to review some of the earlier authorities.

6. Many of the earlier authorities on abuse of process focused on prosecutorial misconduct which I emphasize is not the case here. For example, in R v Derby Crown Court, Ex p Brooks (1984) 80 Cr App R 164, 168-169 Sir Roger Ormrod, delivering the judgment of Lord Lane CJ and himself, set out the categories of abuse, all of which were limited to prosecutorial misconduct. It may for instance be that the prosecution “manipulated or misused the process of the court so as to. deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality.” The court has a discretionary power to ensure that there should be a fair trial according to law, which involves fairness both to the defence and prosecution.

7. In Rv Horseferry Road Magistrates’ Court ep Bennett [1993] 3 ALL ER. 138, 151 HL, the Court held that proceedings should be stayed where defendant demonstrates that on the balance of probabilities:

a) It would be impossible to give the accused a fair trial; or b) Where it would amount to a misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case. These two categories of abuse have been developed in a number of cases that followed.

8. InR v Latif[1996] 1WLR 104, 112, a case of entrapment involving illegal conduct on the part of customs officers, the defendant had been lured into the UK by the unlawful acts of customs officers and heargued that the resulting proceedings should be stayed as an abuse of Process. Lord Steyn stated: "In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the

veriminal justice system. The law is settled. Weighing countervailing

considerations of policy and justice, it is for the judge in the exercise of

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