R v Tichina Rickfield - Ruling

¶ IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 103/2012 THE QUEEN v. TICHINA SHEVONDA RICKFIELD Appearances: Ms. Toyin Salako, for the Crown Mr. Fiona Robertson of Samson and McGrath for the Defendant Before: The Hon. Mr. Justice Charles Quin Trial: 15th December 2014 – Jury of 7 (with 2 in reserve) empanelled and asked to return at a later date. Abuse of Process Submissions Heard: 16th December 2014 Crown’s Reply to Defence Submissions: 17th December 2014 Further Written Submissions filed: 29th December 2014 RULING ON ABUSE OF PROCESS APPLICATION

¶ [1] On the 15th December 2014 the Defence made a submission that the Court should stop the prosecution of this case and stay proceedings on the grounds that, to allow the trial to continue would be an abuse of the Court’s process. Counsel on behalf of the Defendant submits that the application is founded on the grounds of delay and failure of the prosecuting authorities to obtain, retain or disclose material relevant to the case. In relation to the first ground of this application – that of delay – Crown counsel concedes that there has been some delay but not sufficient to prevent the Defendant from having a fair trial.

¶ [2] The case brought by the prosecution charges the Defendant, in her capacity as Acting Secretary of the Work Permit Board of the Cayman Islands Department of Immigration (hereinafter referred to as 'the Board') with fifteen (15) counts of Making a Document Without Authority, contrary to s.293(a) of the Penal Code and one (1) count of Misconduct in Public Office contrary to common law. CHRONOLOGY

¶ [3] In order to properly consider the applicant's submissions, both on delay and on non-disclosure, it is important to record the relevant chronology of events which is largely agreed between the parties as follows: Year Date Activity 2009 8 th Oct. Suspicions first raised about the defendant’s conduct. Decision made to review the matter internally. 2010 20 th Jan. Further concerns raised about the defendant’s conduct 25 th Jan. Internal review of immigration record begins 29 th Jan. Defendant placed on required leave 1 st Feb. Email from Franz Manderson 3 rd Feb. Second Audit requested. 4 th Feb. Second Audit commenced. 9 th Feb. Allegations put to defendant in meeting at Immigration Dept. 18 th Feb. Defendant provides a response to the allegations in a letter from her attorney. 5 th March Second Audit completed. 13 th March Krista Wood was interviewed by the RCIPS 18 th March DPP asked to provide a preliminary view as to whether, based on the information provided thus far, there is the possibility of the commission of criminal offences such that the matter should be referred for investigation to the RCIPS in addition to the proposed disciplinary proceedings. 18 th March The DPP was provided with the following documents: Report dated 4 th February 2010 from the Director and Chairman of the Work Permit Board; Audit report dated 11 th March 2010 compiled by ACIO Jeremy Scott and AST Regina Jackson; and Letter dated 18 th February 2010 from Thorp Alberga on behalf of the Defendant. 18 th March The DPP concluded “I recommend that it would be appropriate for Senior Officers to consider whether this is a matter which should be referred to the RCIPS for investigation, including as to any relevant financial matters and thereafter for further assessment of all evidence obtained.” May File provided to the RCIPS 10 th August DS Betty Anne Ebanks was tasked by Detective Chief Inspector Brady to investigate "allegations made by Linda Evans, the Chief Immigration Officer on certain questionable irregularities, purportedly conducted by Tichina Rickfield in her capacity as acting secretary of the Work Permit Board. The mentioned irregularities spanned over a sporadic period of 6 March to 16 December 2009." 22 nd December DS Betty Ann Ebanks sent a Memorandum to DCI Brady within which she recommended "an internal decision should be taken for Ms. Rickfield to explain on what ground she made what is now considered unauthorized entries to the computer system (IMSS) validating the approvals of the various work permits, which did not follow the system and procedures applicable to the renewing and issuing of work permits." 2011 10 th February DCI Brady sent a Memo to Eric Bush, subject title: Investigation – Tichina Rickfield. Within this Memo DCI Brady reached the following conclusion “At the completion of the research, it is concluded that at the time we are unable to proceed with any criminal investigation against Ms. Rickfield and suggest that the Department of Immigration to proceed under section 5 of the Public Service Management Law (2010 Revision). After perusing the documents, it appears that Ms. Rickfield may have “fast tracked” application for Mr. Alberga and Mr. Watler but there is no evidence that she benefited financially or otherwise and shows that she has broken the workplace rule, if there are rules applicable to the process of work permit applications” 15 th February Statement and signature date of Jeremy Scott’s statement. 3 rd March DCI Brady sought advice from the now DPP providing a copy of DS Ebanks report 11 th March Letter sent to Michael Alberga stating the matter had been referred to the Attorney General’s Office for ruling. 21 st May The currently incumbent DPP sent an email to DCI Brady subject: Misconduct in Public office – Absence of Remuneration attaching the case of R v Belton [2011] 1 Cr. App. R 20. 23 rd May File transferred to DC Spence 28 th May The currently incumbent DPP sent an email to Allyson Minus-Phillips that she had been advised by the police that they were continuing with the investigation with a view to submitting a full file for ruling as to whether any criminal charges should be laid. 1 st June Meeting between AG’s Chambers and Immigration. 20 th June Date of Linda Evans’ statement. Date of Sherryl Miller’s statement. 22 nd June DC Spence drafted statement of Linda Evans. 28 th June DC Spence met with Linda Evans and Sherryl Miller. Statements drafted and sent to Linda Evans and Sherryl Miller. 21 st November Linda Evans signed her statement. Sherryl Miller signed her statement. 30 th November First interview of the Defendant. 2012 Date Event/Action 2012 9 th January DC Spence continues to contact the applicants. 19 th January DC Spence still contacting the applicants 20 th January Orrett Lenard Connor statement date and signature. 28 th January Lemuel Hurlston statement date and signature. 31 st January Franz Manderson statement and signature. 7 th March Second Interview of the Defendant. March Case sent to the DPP for Ruling. 2012 10 th April DC Spence completes her reports and refers it to DI Lavine. 12 th April File submitted to the ODPP for ruling 30 th April Michael Snape’s Ruling 29 th May Tichina Rickfield formally arrested and charged. 7 th June Charges laid. 19 th June First Summary Court appearance. 7 th December First Grand Court appearance. John Furniss indicates that he will write to the Crown re disclosure. 2013 29 th August Email from Michael Snape to Suzanne Livingston, John Furniss copied into the email indicating that the trial date of the 7 October is likely to be vacated. 26 th September Defence disclosure request. 7 th October First trial date vacated on joint application due to outstanding disclosure. 10 th October Michael Snape sent DC Spence John Furniss disclosure request. 2014 10 th March Second trial date vacated for defence counsel’s convenience 24 th March Third trial date vacated for crown counsel’s convenience 20 th October Fourth trial date. Moved to 22 nd October 2014 for Crown counsel’s convenience. Defence application to adjourn due to lack of legal aid is refused. 22 nd October Trial date vacated due to lack of court space. THE DEFENDANT'S/APPLICANT'S SUBMISSIONS

¶ [4] The case has aged for five (5) years: Counsel on behalf of the Applicant submits that the result of the delay is that the Defendant will now stand trial for matters which first came to light five (5) years ago. Counsel submits that whilst a delay of five years in the matter coming to trial is of concern, it is the delay from May 2010 to March 2012 that causes most concern and the most significant prejudice to the Defendant. Counsel submits that no good or proper reasons have been provided for such a lengthy delay in the investigation by the Department of Immigration and then by the RCIPS and submits that the effect is that the Applicant first formally answered questions in relation to the allegations three (3) years after they first arose.

¶ [5] Defendant's early Response and Requests for Information: Counsel places great store on the letter of the Applicant’s attorneys, Thorp Alberga, dated the 18th February 2010 and states that this letter sets out the Defendant’s position and asks for further discovery. It is the Applicant’s case that her attorneys chased up this request with the Department of Immigration — asking that the Applicant either be taken off required leave or civil proceedings for wrongful termination would be filed. Accordingly, counsel on behalf of the Applicant submits that the Applicant did make efforts to assert her rights.

¶ [6] Board’s Workload/Agenda for Meetings: Counsel highlights the fact that there are fifteen counts of making a document without authority contrary to s.293(a) of the Penal Code – spanning the period from the 12th January 2009 until the 21st January 2010. During this period the Applicant was the Acting Secretary of the Board – which, counsel contends, was seriously overworked during this time and there was an almost chaotic backlog. For example, if a work permit ran out in January 2010 and the applicant would apply for renewal for 12 months, frequently the application for the renewal was not considered until later in 2011 – long after the renewal period had expired. Counsel contends that there were tens of thousands of applications for work permit renewals. In addition, the Board was dealing with de novo applications for work permits, applications for renewals, and, applications for variations of permits. At any one meeting there could be up to eighty items to be dealt with by the Board.

¶ [7] Additions to the Board’s Meeting Agenda: In addition, there were what was called “walk-ons”; these were files that may have gone missing and were then located. Also, members of the Board at various times asked for certain applications, which were not on the original agenda for meetings, to be dealt with. The Defence has been supplied with the Chairman’s Agenda and Minutes but the Defence is seeking to obtain the agendas of all the Board members because the Defence seeks the notes the Board members made on their respective Agendas which may indicate additions to the agenda at meetings.

¶ [8] *Delay with Disclosure*: The Defence complains about a significant delay and lack of disclosure but submits further that the delay feeds into the disclosure.

¶ [9] *Defendant’s passcode(s) given to other staff members*: The Defence submits that the Defendant had a higher access level to information in the computer database/IMSS system, than some of her staff, but, in light of the sheer pressure of work, she delegated certain tasks to other members of the Department and, on those occasions, the Defendant would allow other members of the Department to use her access passwords.

¶ [10] *Faulty computer/IMSS system*: In addition, after Board meetings the results of the applications and the Minutes were fed in to the computer IMSS system and it is common ground that the integrity of the computer system has been called into question (prior to this case) and, in addition, there have been faults with the printouts from the system. THE CROWN'S SUBMISSIONS

¶ [11] The Crown alleges that the Defendant made unauthorized changes to the Minutes of the Meetings and the Board's decision(s). In addition, the Crown alleges that the Defendant accelerated certain specific applications, thus giving these specific applications favourable treatment.

¶ [12] Accordingly, the first audit on the Defendant's role as Acting Secretary of the Board was carried out on the 29th January 2010, with the first report completed on the 4th February 2010.

¶ [13] A second audit was undertaken which extended the period of time reviewed and a subsequent report was submitted in early March 2010. DELAY

¶ [14] The Defence complains of the delay of almost five (5) years before this case has come to trial, but, the Defence specifically complains about the delay from May 2010 to March 2012, which, they submit, causes the most significant prejudice to the Defendant/Applicant.

¶ [15] Defence counsel makes no complaint about the conduct of the DPP, but complains about the delay caused by the inactivity of the Department of Immigration and the RCIPS from May 2010 to March 2012. The Defence submits that no proper reasons have been provided for such a lengthy delay in the investigation by the Department of Immigration and the RCIPS.

¶ [16] The Defence points out that at a meeting on the 1st June 2011 between the Attorney General’s Chambers and the Immigration Department the Defendant’s response to the allegation was considered. The Defence complains that efforts were made to mitigate or close the gaps in the case against the Defendant and attempts were made to avoid other parties being implicated in the allegations. Accordingly, the Defence submits that, (in the face of the current delay) the independence of the Attorney General’s Chambers must be called into question as those Chambers should be providing legal advice and not acting as the investigative body and this, in and of itself, caused further delay.

¶ [17] The Defence submits that the 22-month delay allowed the prosecuting authorities in conjunction with the Immigration Department to strengthen their case against the Defendant – as they had the benefit of the Defendant’s response to the allegations along with the time and the resources to counteract her defence. Counsel further submits that the Attorney General’s Chambers’ assistance to the Immigration Department and the RCIPS raises concern about the independence of the AG’s Department. Furthermore, the Defence submits that the delay caused by the AG’s Chambers’ interference in the process has resulted in prejudice to the Defendant.

¶ [18] By the time of the first interview in November 2012 the allegations were approximately three (3) years old. Defence submits that the Defendant was on required leave without access to the Immigration systems or files and her ability to answer the allegations and prepare her defence has been severely compromised. FAILURE TO PROVIDE DISCLOSURE:

¶ [19] The Defence complains that, along with the prejudice caused by the delay is the failure of the prosecuting authorities to provide important disclosure to the Defendant.

¶ [20] The Defence relies on the fact that the prosecution case is based on inconsistencies (in the documentary exhibits) between the Board Agenda Minutes and the IMSS entries.

¶ [21] Each application before the Board is listed for a meeting and added to the Agenda. The defence submits that each member of the Board had their own Agenda on which each member noted the outcome of the decision making process. As the decision is made in the meeting it is simultaneously recorded in the Minutes which are checked, amended, and signed off at the end of each meeting. The result of each meeting is then recorded in the IMSS system by the secretarial staff. The Defence states that it has been asking for each Board member’s agenda so that they could see whatever notes each member made at the relevant meetings. Defence submits that this is vital to the Defence’s case because it is only by cross referencing the respective Board Members’ agendas that the Defence will be able to establish whether the correct decision was recorded and what, if any documents, the Defendant made without authority and with intent to deceive.

¶ [22] The Defence submits that the Immigration Department and the RCIPS had a duty to collect and preserve all the relevant material and evidence as soon as possible and provide it to the Defence. The Defence contends that the Immigration Department and the RCIPS have failed in this duty and, without complete and full disclosure the Defence is severely curtailed in its ability to challenge the prosecution’s case.

¶ [23] Defence contends that, whilst the period primarily complained of is between the Defendant's suspension and her charge, the overall delay must be considered as no adequate explanation has been offered for the unconscionable delay from May 2010 to May 2011 and the Defendant has not been afforded a trial within a reasonable period of time, which is a clear breach of her rights under Section 7 of the Bill of Rights. CROWN'S CASE

¶ [24] The Crown accepts that there has been some delay from the 29th January 2010, when the Defendant was placed on required leave until the 12th April 2012 when the matter was referred to the DPP.

¶ [25] Crown counsel highlights the fact that, between the 29th January 2010 when the Defendant was put on required leave until the 12th April 2012, the following tasks were completed before the file could be referred to the DPP for a Ruling: i. Investigation into any irregularities from January 2009 to January 2010; ii. Investigation of into any irregularities from January 2009 to January 2010; iii. Collating the material where irregularities were identified; iv. Meeting with Tichina Rickfield; v. Interview of Krista Wood; vi. Advice from the now DPP; vii. Initial file to the RCIPS to consider; viii. Taking of statements; ix. Advice from the Attorney General's Chambers; x. Collation of statements; xi. Initial interview of TR; xii. Contact with the various applicants. xiii. DC Spence spoke to representatives from the following companies whose work permit applications form part of this investigation, namely: A. Cell Cellular World; B. Quadscape Ltd; C. Funky Tangs; D. Carlton Dawkins; E. Dennis Pascal; F. Jeli Centre; G. Magnum Jewelers; H. Shivells Beauty Centre; I. Motions Unlimited; J. Princess World Jewelers

¶ [26] Crown counsel submits that DC Spence spent considerable time interviewing these work permit applicants, but regrettably, none of the applicants in 25.xiii A-J above were prepared to provide a written statement. However, these efforts disclosed the fact that it was a complex investigation which simply took time to complete. The file was submitted to the DPP once the investigation had been completed and the evidence collated.

¶ [27] Crown counsel said this is not a case where the delay can be said to be deliberate or unconscionable due to inefficiency on the part of the Prosecution. It is purely the nature of the allegation and the necessary investigation that has caused the delay.

¶ [28] Towards the end of 2010 the RCIPS was of the view that this matter could have been dealt with "internally" (within the Department of Immigration). Furthermore, there seemed to be some confusion about whether there had to be some evidence of some kind of benefit — whether financial or otherwise — to the Defendant, before a criminal charge could be laid. In addition the Department of Immigration sought the advice of the Attorney General's Chambers, which again took time to process and consider.

¶ [29] It is therefore the Crown’s case that this was a complex investigation involving many documents and care had to be taken over the documents and audits. In addition, careful consideration had to be applied in relation to whether the Defendant’s conduct amounted to a criminal offence, or whether this was matter for internal discipline, and then come to a final decision.

¶ [30] Crown counsel advises that the RCIPS officer, DS Ebanks who was initially assisting Detective Inspector Brady in this case became ill and the file was ultimately transferred to DC Spence from the 23rd May 2011. This illness caused delay. As DS Ebanks was taken off the case, DC Spence had to read into the file and then began to take statements in June 2011. DISCLOSURE

¶ [31] It is the Crown’s case that the Defendant was provided with all the disclosure of the material on which the Crown sought to rely and the Defendant has had that material and the majority of the evidence since February 2010.

¶ [32] In addition, the Department of Immigration has invited the Defendant and her attorneys to review the IMSS documentation at any time. This invitation has never been rescinded.

¶ [33] Crown counsel submits that during her interview on the 7th March 2012 the Defendant was shown all the evidence on which the Crown intends to rely, in addition to all the disclosure that was provided on the 8th and 9th of February 2010.

¶ [34] Since the initial request the Crown have sought to respond to all disclosure requests. To date the outstanding disclosure is as follows: i. All correspondence between the defendant, board members, Miller, Williams, Hurlston, Manderson and HR for the relevant period relating to problems with the immigration or computer systems, including items not showing on agendas, items not printing or duplication of items: *First requested on 13 October 2013*. ii. Copies of all agendas (i.e. for all members present) for the board meetings for the dates on the indictment: *First requested by John Furniss. Crown counsel states that she has met with the Acting CIO Bruce Smith and his tasked Jeremy Scott to obtain the necessary information*. iii. Copies of all amended minutes for the board meetings for the dates on the indictment: *Not previously requested*. iv. Copies of all computer records relating to the meetings for the dates on the indictment: *Not previously requested* v. Computer records/access records for the printing of term limit sheets (showing whose name is displayed for entries after such an action): *Not previously requested*. vi. IMSS entries for all matters hearing on 20 January -- board meeting when 2 items are alleged to have been expedited: *First requested 16 October 2014*. vii. What period was subject to the internal review and how many cases were considered/checked: The Crown has endeavoured to provide full and complete disclosure of all the records and documentation from January 2009 to January 2010. THE LAW DISCLOSURE

¶ [35] In the recent case of Regina v. Fernando Mendes¹ dated the 12th August 2014, the Court reviewed the case law in relation to disclosure in criminal cases.

¶ [36] Lord Hope of Craighead in the House of Lords case of Regina v Brown (Wilson)² stated at letter G on page 374: "The rules of disclosure which have developed by the common law owe their origin to the elementary right of every defendant to a fair trial. If the Defendant is to have a fair trial he must have adequate notice of the case which is to be made against him. Fairness also requires that the rules of natural justice must be observed. In this context as Lord Taylor of Gosforth C. J. observed in Reg. v. Keane³. The great principle is that of open justice. It would be contrary to that principle to withhold from the Defendant material which might undermine their case against him or which might assist his defence."

¶ [37] The learned Chief Justice Anthony Smellie applied Lord Hope's dicta in the case of In Re Eurobank Corp⁴ where he set out the principles of pre-trial disclosure as they apply to the Cayman Islands: "(i) The Crown has a duty to disclose to the defence all relevant unused material, whether or not advantageous to the defence. (ii) Witness evidence of documents satisfying the criteria for materiality would be those that were relevant or possibly relevant to an issue in the case, those that raised or possibly raise a new issue the existence of which was not apparent from the prosecution's evidence, and those that had a real prospect of providing a lead on evidence pertinent to the above. (iii) Disclosure would be required not only if the material were relevant to the offence charged, but also if it had some bearing on the surrounding circumstances." ¹ Indictment No. 0081/2011 ² (H.L. (E)) [1998] AC 7 ³ [1994] 1 W.L.R. 746, 750 G ⁴ [2002] CILR 15

¶ [38] Deborah Barker Roye in her Third Edition of *Criminal Litigation in the Cayman Islands* provides a very helpful chapter on pre-trial disclosure. The learned author cites the English Court of Appeal case of *R v. Ward*⁵ which was applied by the Chief Justice in *In Re Eurobank Corp.*, and which is authority for the proposition of material which might assist the defence is not limited to evidence which would obviously advance the defence case. The Defendant is to be afforded the opportunity of considering all the material evidence which the prosecution has gathered.

¶ [39] At paragraph 5.2.2, in relation to unused material, Mrs. Barker-Roye refers to the English Court of Appeal decision of *R v. Maguire & Ors*⁶: "The Crown is not to be excused from this duty on the basis that it was not made aware of material information." It is a well-established principle under the law of the Cayman Islands that the Crown has a duty to provide full and complete disclosure of all material which may assist the case for the Defence or undermine the Crown’s case. ⁵ [1993] 1 WLR 619 ⁶ [1993] 94 Cr App R. 123 DELAY

¶ [40] Lloyd LJ stated in the case of Gateshead Justices ex parte Smith⁷: "Proceedings may be stayed as an Abuse of Process due to delay, even if the delay has not been deliberate, where the delay has been unconscionable due to the prosecution’s inefficiency and prejudice to the Defendant can be proved or inferred."

¶ [41] The Prosecution in this context would include the Director of Public Prosecutions, the Attorney General’s Chambers, the RCIPS and the Department of Immigration as the investigating bodies.

¶ [42] In Bell v DPP of Jamaica⁸ the Privy Council laid down guidelines for determining whether delay would deprive the accused of a fair trial. The relevant factors were said to be: i. The length of delay; ii. The reasons given by the prosecution to justify the delay; iii. The responsibility of the accused for asserting his rights; and iv. The prejudice to the accused.

¶ [43] In this case, the Defence submits that the delay from the 29th January 2010, when the Defendant was placed on required leave, until March 2012, when the case as sent to the DPP for a Ruling, was unconscionable and has prevented the Defendant from having a fair trial. ⁷ (1985) 149 J.P. 681) ⁸ [1985] AC 937

¶ [44] The factors which the Court should take into account when considering the effect of delay on fairness of trial are very clearly set out in Blackstone's Criminal Practice 2015 at paragraph D3.79. The learned editors refer at D3.79 on page 1328 to the judgment of the former Chief Justice, Lord Lane, in Attorney General’s Ref (No. 1 of 1990)⁹: "Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances...In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can be properly imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the Defendant himself should never be the foundation for a stay ...[N]o stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether it is likely to be prejudicial and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge in common law [and under the PACE 1984] to regulate the admissibility of evidence; secondly, the trail process itself, which should ensure that all relevant factual issues arising from the delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate direction to the jury before they consider their verdict."

¶ [45] Section 7(1) of the Bill of Rights of the Cayman Islands is in exactly the same terms as Article 6 of the European Convention of Human Rights (ECHR) and reads: "Everyone has a right to a fair and public hearing in the determination of his or her legal rights and obligations by an independent Court within a reasonable time." ⁹ [1992] Q.B. 630 (at pages 643-4)

¶ [46] The learned editors of the 2015 edition of Archbold refer to the House of Lords decision in A-G’s Ref (No. 2 of 2001)¹⁰. "The House of Lords ruled that criminal proceedings may be stayed on the ground that ... (a) there can no longer be a fair hearing, or (b) it would be otherwise unfair to try the defendant (per Lord Bingham at 24). It was said that it would be anomalous if breach of the reasonable time requirement were to have an effect that is more far-reaching than breach of the accused’s other Article 6(1) rights."

¶ [47] In Dyer v. Watson¹¹ Lord Bingham, giving the opinion of the Privy Council said at paragraph 52 that the threshold of proving that a trial has not taken place within a reasonable time "is a high one, not easily crossed." However, his lordship went on to say: "If the period which has elapsed is one which, on the face, gives ground for real concern, it is necessary to look into the detailed facts and circumstances of the particular case and it must be possible to explain and justify any lapse of time which appears to be excessive." Lord Bingham, at paragraph 53 stated that regard must be had to the complexity of the case, the conduct of the accused (he cannot properly complain of delay of which he is the author) and the manner in which the case has been dealt with by the prosecution and the courts. As regards the latter, Lord Bingham said that there is no general obligation for a prosecutor to act with all due expedition and diligence, but a marked lack of expedition, if unjustified, would point towards a breach of the reasonable time requirement. ¹⁰ [2004] 2 AC 72 ¹¹ [2004] 1 AC 379

¶ [48] I should state at this juncture that no real blame can be attributed to the Defendant, but the delay within the Department of Immigration and the RCIPS does give me ground for some concern, and that makes it necessary for me to look into the detailed facts and circumstances of this case. I should add that I agree with defence counsel that the delay in 2010 and 2011 is of more concern than the delay since the Indictment was laid.

¶ [49] I do accept the contention that some time was spent by both the Department of Immigration and the RCIPS in deciding whether a criminal investigation should be continued or whether the matter should be dealt with internally under the Public Service Management Law. And I do accept that the Department of Immigration quite rightly sought the advice of the Attorney General. I also accept that Detective C I Brady took ill and, therefore, it was not until May 2011 when the file was transferred to DC Spence that any significant progress was made.

¶ [50] The learned editors of Blackstone’s 2015 edition state at paragraph D3.81, the Privy Council revisited the question of delay in Speirs v Ruddy\(^{12}\) emphasising that a stay of proceedings is the last resort. The learned editors stated further “Lord Bingham of Cornhill CJ said (at [16]) that where there has (or may have been) such delay in the conduct of proceedings as to breach a party’s right to trial within a reasonable time, but where the fairness of the trial has not been or will not be compromised, ‘such delay does not give rise to a continuing breach which cannot be cured save by a discontinuation of proceedings. It gives rise to a breach which can be cured, even where it cannot be prevented, by expedition, reduction of sentence or compensation, provided always that the breach, where it occurs, is publicly acknowledged and addressed.’” \(^{12}\) [2008] 1 AC 873

¶ [51] The English Court of Appeal in the case of \( R \ v.\ F\ (T\ B) \)^{13} reviewed the relevant authorities and sets out the following five propositions in relation to criminal prosecutions brought after a long delay: "i. *The Court should stay proceedings on some or all counts of the indictment for abuse of process if, and only if, it is satisfied on balance of probabilities that by reason of delay a fair trial is not possible on those counts.* ii. *It is now recognised that usually the proper time for the defence to make such an application and for the judge to rule upon it is at trial, after all the evidence has been called.* iii. *In assessing what prejudice has been caused to the defendant on any particular count by reason of delay, the court should consider what evidence directly relevant to the defence case has been lost through the passage of time. Vague speculation that lost documents or deceased witnesses might have assisted the defendant is not helpful. The court should also consider what evidence has survived the passage of time. The court should then examine critically how important the missing evidence is in the context of the case as a whole.* iv. *Having identified the prejudice by reason of delay, it is then necessary to consider to what extent the judge can compensate for that prejudice by emphasising guidance given in standard directions or formulating special directions to the jury. Where important independent evidence has been lost over time, it may not be known which party that evidence would have supported. There may be cases in which no direction to the jury can dispel the resultant prejudice which one or other of the parties must suffer, but this depends on the facts of the case.* v. *If the complainant’s delay in coming forward is unjustified, that is relevant to the question whether it is fair to try the defendant so long after the events in issue. In determining whether the complainant’s delay is unjustified, it must be firmly borne in mind that victims of sexual abuse are often unwilling to reveal or talk about their experiences for some time and for good reason.*

¶ [52] Subsequent to the case of \( R \ v.\ F\ (T\ B) \), a five-judge Court of Appeal presided over by the former Lord Chief Justice Lord Judge, in \( R \ v.\ F\ (S) \)^{14}, the following principles were set out: ^{13} [2011] 2 Cr. App. R. 13/145 "An application to stay proceedings for abuse of the processes of the court, made on the grounds of delay, cannot succeed unless, exceptionally, a fair trial is no longer possible owing to prejudice occasioned by the delay which cannot fairly be addressed in the normal trial process. The presence or absence of explanation for the delay is relevant only in so far as it bears on that question. Such an application, which is a distinct matter from a submission of no-case to answer must receive distinct and separate consideration, ordinarily to be tried and determined at the outset of the case and before the evidence is heard, unless there is a specific reason to defer it because the question of prejudice and fair trial can better be determined a later stage. On such an application the trial judge is not responsible for assessing whether, in advance of a conviction, that conviction would be unsafe."

¶ [53] Having reviewed the detailed facts and circumstances put before this Court, I find that, whilst there was initial delay — in the Department of Immigration and the RCIPS — once DC Spence took over the file the matter was progressed with reasonable expedition and due diligence. In addition to the material before the Court I accept the Crown’s submission that the case was a complex one to investigate. There were very many different forms and documents to review, collate and disclose.

¶ [54] Having heard the submissions of both counsel I am satisfied that the Defendant has received very full and significant discovery from as far back as February 2010. In addition, access to the IMSS computer files has always been available and it was for the Defendant and her attorneys to take up the offer to examine them.

¶ [55] The following documents are the most important and relevant documents to this case: i. The Chairman’s agenda for the Immigration Board meeting with any formal amendments to it; ii. The Minutes of the Immigration Board meeting recording what was considered, discussed and what decisions were made and then recorded; iii. The decisions of all the applications made at the Board Meeting.

¶ [56] It is clear that there was some confusion when the Defence was asking for the individual agendas of the respective Board members. It is regrettable that the Department of Immigration did not explain to the RCIPS that they were confused and uncertain as to what specific material was needed. The Department of Immigration should have reverted back to DC Spence to clarify that request – which early clarification might have avoided some significant delay.

¶ [57] However I understand that this material is now being provided to the Defendant. Should the Defendant and her attorney require more time to consider the recent disclosure the Court will be sympathetic to further applications for time.

¶ [58] On the 31st December 2014 the Court was provided with an email suggesting that the individual agendas for the Board members may not now be available.

¶ [59] All witnesses in relation to the case are alive and available to give evidence.

¶ [60] The Defendant is not prevented or hampered in testing the evidence of the Crown witnesses or putting her case to them.

¶ [61] The delay between the charge being laid and the trial has been justified because both Defence and Prosecution counsel made separate applications to adjourn the case and, indeed, on occasions, made joint applications to adjourn.

¶ [62] Whilst some blame can be attached to the Department of Immigration and the RCIPS for failing to progress this matter with expedition and efficiency from March 2010 to May 2011, I do accept Crown counsel’s submission that the case was complex, with a very large amount of documentation to be collated reviewed and disclosed.

¶ [63] The delay between the charge of 7th June 2012 and the trial is approximately 30 months. In Dyer v. Watson\(^{15}\) the delay was 20 months and 28 months. In the A-G’s Ref (No. 1 of 1990))\(^{16}\) the delay was 27 months. In Dyer v. Watson the delay was 20 months and was not a cause of concern to the Court of Appeal of England and Wales. In other cases 20 months delay did not reach the high threshold required for a stay to be granted. The case of Dyer v. Watson was dismissed primarily because the delay of 28 months was justifiably too long – considering the Defendant was a minor, and hence the delay breached the rights of a child under the United Nations Convention on the Rights of a Child 1989. In the A-G’s Ref (No. 1 of 1990) the delay of 27 months did not reach the high threshold to justify a stay.

¶ [64] In this case, the time between the charge and the trial is a few months longer than the case in England where the Court of Appeal had said a stay is not justified.

¶ [65] Having taken everything into consideration I find that the Defence have failed to establish on the balance of probabilities that owing to the delay this Defendant, Ms. Tichina Rickfield, would suffer serious prejudice to the extent that no fair trial could be held. I am satisfied that the trial process can ensure that the Defendant has a fair trial and further that it would not be unfair to the Defendant to continue with the prosecution of this case. \(^{15}\) Op. cit. \(^{16}\) Op. cit.

¶ [66] I will of course invite both counsel, and in particular, Defence counsel, for their input on the appropriate directions to the jury.

¶ [67] This case is not an exceptional case to justify a stay and, accordingly, I order the trial to continue. Dated this the 5th January 2015 Honourable Mr. Justice Charles Quin Q.C. Judge of the Grand Court