According to Sturge, and attorneys Mario Merritt, Danielle Rampersad and Joseph Sookoo, who represents an accused man before the High Court, the practice direction on pre-trial defence disclosure interfere with an accused person’s right to silence and their fair trial rights.
The lawyers also contend that the practice direction, dated December 14, 2017, sought to bypass parliamentary scrutiny and was mandatory in nature.
In a pre-action protocol letter sent to the CJ yesterday, the lawyers put Archie on notice of their intention to file a judicial review claim to have the practice direction quashed and deemed to be unconstitutional.
According to the lawyers, the practice direction does not form part of the new CPR 2016, which came into force on April 18, 2017.
They said any rules of court made by the Rules Committee were subject to negative resolution of Parliament and although the CJ was empowered to issue practice directions, those which he gave in December contravened an accused’s right to silence.
“Practice directions as contemplated under the rules are directions as to the practice and procedure of any court within the scope of the rules. They are not meant to replace and/or add to the rules as they are not equivalent to delegated legislation under the purview of Parliament,” the lawyers’ letter said.
“The practice direction purports to import a new rule not contemplated in the rules.”
They also added that the new rules provided for the application of case management powers in a discretionary manner and the practice direction was mandatory in nature and was nothing more than a new rule.
The lawyers also said it was unconstitutional to create a sanction for failure to comply with the practice direction or to force a defendant to disclose his defence.
Sturge and the other attorneys have called on Archie to immediately direct that the implementation of the practice direction paused and that a new practice direction is issued removing any sanctions for the failure to provide a defence statement.
The CJ has been given 30 days in which to respond to the letter.
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