RESOURCE MATERIAL SERIES No. 55

TOPIC 3
EFFECTIVE COUNTERMEASURES FOR SPEEDY TRIAL
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members
Advisers

Mr. Thabrew Mahadura
Thilak Ravindra
Mr. Yoshihisa Denda
Ms. Rebeka Sultana
Mr. Chalermsak Pattarasumantg
Mr. Hideharu Arimitsu
Ms. Takako Naomoto
Prof. Hiroshi Iitsuka
Prof. Shoji Imafuku

I. INTRODUCTION
Speedy administration of justice is thetheme of many seminars held these days
in most of the countries. In some countries,
trial delays have reached alarming
proportions and this phenomenon has far
reaching consequences. The consequencesof a delayed trial are numerous. If the trial
is delayed, there is a danger that the real
culprit may escape justice due to scatteredevidence, and that the innocent must suffer
unnecessary pains. If the defendant isunder detention, the damage is more
irrecoverable. Furthermore, delayed trial
will deprive the deterrent effects ofcriminal judgment on the offender. The
sense of retribution loses its significancewhen the judgment is delivered after a long
passage of time. Additionally, trial delay
will increase the number of remandprisoners and cause overcrowding.
Therefore it is in the public interest to
encourage speedy trial.
Speedy trial is considered a fair process
conducted within a reasonable period oftime. It is difficult to determine a precise
time frame for a speedy trial, since it
depends on the nature of the case, the legal
framework and infrastructure related
factors. However, speedy trial means not
only the commencement of trial within a

448(Sri Lanka)(Japan)(Bangladesh)(Thailand)(Japan)(Japan)(UNAFEI)(UNAFEI)

statutory prescribed time frame from thetime the suspect is arrested, it also
encompasses the completion of the trial
within a reasonable time frame.
The reasons and causes of delay are
manifold. Various parties are responsible
for the delay: the court, prosecution,
defence counsel or the criminal justicesystem itself. These factors areinterrelated. To achieve speedy trial, thepolice, prosecutor, defence counsel andcourt must do their duty properly. The
police play a pivotal role in ensuring speedy
justice by completing investigations
expeditiously. Similarly, the prosecution
would have to do the screening of cases andfile charges or indictment in court without
delay. At the trial stage, the prosecutor andthe defence counsel should refrain frommoving for frequent adjournments. Finally,
there is a duty cast upon the judge toensure that the trial is concluded without
delay and deliver judgement as early as
possible.
In this paper we have identified somecommon problems faced by theparticipating countries, with regard to trial
delay. We have also proposed somerecommendations to these problems.

111TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
II. HEAVY CASELOAD ON JUDGES/MAGISTRATES
A. Problem
With the increasing mobility of the
population and with the advancement ofcommunication and financial links, themodern world is facing significant change
in criminality. An increasing number of
economic crimes like bribery, corruption
and computer crimes have led to aconsiderable number of new cases in the
courts at all levels, in addition to thealready overcrowded cases of the courts.
Too many cases are fixed for a given trial
date and it is impossible for the trial judge
to hear them all, so only a few cases areheard on one trial date. Others result in
postponement and are re-scheduled forhearing on other dates.
An insufficient number of judges tohandle so many cases, and also the dualrole of the judges in dealing both in civil
and criminal cases, leads the court to divide
the days for both criminal and civil cases.
Besides this, some judges have to doadministrative work too. In addition, due
to heavy caseloads, judges have little time
to write and deliver judgments. It is foundthat in some countries, because of ashortage of time or the dual role of judges
hearing trials of both civil and criminalcases, delay in writing and delivering
judgments has become a serious problem
in practice.
B. Overview of the Current
Situation in Some Countries
1. Bangladesh
Statistics of trial cases show that 49,472
cases were pending in 1996 and 60,791 in
1997. An insufficient number of judges/
magistrates is one of the main causes oftrial delay. All reported cases go for trial,
and there is no screening methods at theinvestigation level.

2. India
Statistics reveal that in 1996, 6,296,562
cognizable crimes were reported in the
country, which is an increase of 43.3% over
the year 1986, with a compound growthrate of 2.55% per annum. Among thereported cases, 76.9% were sent for trial.
Another report indicates that thepercentage of trials completed in a year isgoing down steadily. While about 30% of
trials were completed in 1971, thepercentage came down to 23.9% in 1981
and to 16.8% in 1991. This percentage has
further come down to 15.5% in 1994. The
number of pending trial cases under the
Indian Penal Code was 5,280,000 in 1995,
which increased to 5,620,000 in 1996. Outof these, 21.6% cases have been pending
for more than 8 years. The number of cases
pending trial for more than 8 years
increased from 1,070,000 in 1995 to
1,211,000 in 1996, showing an increase of
13.3%.
3. Japan
Statistics of 1997 show that 74.3% of
district court cases were disposed of within
three months, and 93.5% within six months
after institution of the prosecution. Insummary courts, 88.1% were adjudicatedwithin three months and 97.5% within six
months.
4. Malaysia
With regard to the total number ofcriminal cases at each court until themonth of October 1998, statistics show that4169 cases were registered, 2247 cases
were closed. 1922 cases were pending inhigh courts, 7061 cases were registered,
4174 cases were closed. 2887 cases wereactive in sessions courts, 1,197,778 cases
were registered, 636,563 cases were closed.
561,215 cases were active in magistrate’s
courts.
In most cases, high courts andsubordinate courts deal both in civil and

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RESOURCE MATERIAL SERIES No. 55
criminal cases. Thus, the courts have to
divide the days to handle both civil andcriminal cases. In some cases, subordinate
courts allocate only two days in a week to
conduct criminal matters, and within those
two days the court has to dispose of cases
where the accused pleads guilty, call the
probation officers and conduct criminal
trials. Despite these constraints,
subordinate courts still fix about two cases
for hearing on a given criminal list day.
5. Pakistan
The court proceedings often go at asnail’s pace. As to the percentage ofdisposal of cases in courts, statistics showthat in 1996, 35.7% cases were disposed ofwithin three months and 80.9% cases were
disposed of within nine months.
C. Countermeasures
1. Increase of Judges and Courts
In order to reduce the heavy caseload on
judges, the number of judges and courts
should be increased. In addition, a
specialized court may be established inorder to effectively handle particular typesof cases like tax evasion and banking
offences, which require judges to haveexpertise. However this solution is easier
said than done. Budgetary constraints may
prevent a nation from establishing new
courts or increasing the number of judges.
Additionally, there was opinion expressedin the general discussion sessions that thisis a only short-term solution, and it will
not function well in the future. Someparticipants suggested that civil andcriminal cases should be handled byseparate courts to avoid the dual role ofjudges.
2. Reduction of Cases - Diversion
The judges’ caseload will decrease if thenumber of cases is reduced. Diversion,
such as traffic infractions and suspensionof prosecution before the trial stage, aresome of the effective measures to be taken

450

in order to reduce caseload. In addition,
proper consideration should be given toutilize conciliation or mediation in criminal
proceedings. In fact, various forms ofconciliation or mediation are applied indifferent countries, either before the cases
are filed in the court or even when they
are pending in court. For example, inSingapore, Bangladesh and Sri Lanka,
relatively minor offences are listed ascompoundable in the Criminal Procedure
Code. Such offences may be compoundedby the victim with the consent of the court,
only after the defendant has been indicted.
Compounding has the effect of an acquittal,
and the defendant is discharged from thecourt proceedings.
3. Introduction of Arraignment
Some countries like Britain and theUnited States have an arraignment
system. Under this system, if the accused
pleads guilty in the opening proceedings,
fact-finding can be omitted and thesentence can be rendered immediately. We
all agreed that this would save a lot of thecourt’s time. However, at the same time,
as expressed by some Japaneseparticipants, the court wishes to besatisfied that the accused has reallycommitted the offence charged.
III. LACK OF KNOWLEDGE AND
EXPERIENCE OF JUDGES
A. Problem
Incompetence and ignorance of law, andlack of experience of some judges/
magistrates were considered as factors in
the delay of trial. Judges exercise theirdiscretion, in respect of law, in various
ways. The scope and methods of examining
witnesses, prolonged and irrelevant crossexamination, determination of theadmissibility and probative value of theevidence, the extent of admissibility ofhearsay evidence, the degree of proof
required for applicability of conflicting

111TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
rules, requires a high degree ofprofessionalism. Failure to keep abreastof the law and jurisprudence, and lack ofexpertise and training of the judges/
magistrates may cause delays in trial.
B. Countermeasures
1. High Qualifications and Standards for
Appointment
Various matters should be taken into
consideration at the appointment level toimprove the quality of judges. We all
agreed that mere graduation from a law
university is not enough for theappointment of judges. The candidate
judge should pass a qualifying
examination, and the qualifying standards
should be set fairly high. For instance, inJapan, a person being qualified in thenational bar examination has to receive twoyears intensive training in the Legal
Training and Research Institute of theSupreme Court, and has to undergo 16
months of practical training in the courts,
prosecutors office and private law offices.
After completion of all those requirements,
the legal apprentice has to qualify by final
examination for appointment as an
assistant judge. The Republic of Korea also
has a similar appointment system.
2. Training
Basic training is essential to induct all
persons appointed as judges into theprofession, including those selected fromthe Bar. Additionally, to keep judges
abreast of the trends in jurisprudence, theyshould undergo periodical training
programmes. In this connection, theJapanese training system may be one of
the models. The assistant judge system inJapan is aimed at providing professional
experience through on-the-job training foran assistant judge, before qualifying as afully-fledged judge. For the first five years,
the judicial authority of an assistant judge
is restricted. He or she can be an associate
judge of a three-judge court, but as a single

judge, s/he can decide only limited matterssuch as detention at the investigation
stage. After five years experience, anassistant judge is qualified as a seniorassistant judge to preside over a trial in asingle-judge court. Joint seminars of police,prosecutors and judges should also be held
periodically for better cooperation andmutual understanding
IV. LACK OF RESOURCES IN
THE COURT
A. Problem
Because of the tremendous increase ofcrime and backlog of cases, there has beenan enormous rise in the number of criminalcases, but court personnel have not been
expanded to meet this demand. Lack ofprofessional and technical skills, and low
salary for court personnel, are also serious
problems. For example, the shortage ofcourt interpreters is one problem which thecourt is facing in many countries. Also, thelack of equipment may lead to trial delay.
For instance, the method of recording
evidence in some counties is slow andtedious, because they do not use taperecorders to record the testimony of
witnesses. This may delay the completionof recording of witnesses examination orproceedings. Besides this, limited financial
resources are also a grave problem.
B. Overview of the Current
Situation in Some Countries
1. Algeria
Cases are registered manually and thiscreates a serious problem in casemanagement. Court personnel sometimes
intentionally do not register the cases
properly and parties face problems infinding the case schedule.
2. Malaysia
Courts are experiencing an acuteshortage of Chinese interpreters. The
Chinese prefer to speak in their mother451

RESOURCE MATERIAL SERIES No. 55
tongue during trials. Low salary is themain reason why Malaysian Chinese are
not interested in the job as interpreters,
since they can obtain better pay in theprivate sector.
C. Countermeasures
1. Adequate Support Services
Adequate support services to judges bycourt clerks, court stenographers, court
interpreters and research officials should
be provided. Judges should closely
supervise them to ensure that they performtheir functions in an appropriate manner.
2. Modern Office Equipment
As well as human resources, modern
office equipment such as tape recorders,
computers, faxes and copy machines shouldbe also provided in the court. For example,
the use of tape recorders to record court
proceedings could save the courts’ time,
instead of laboriously recording thetestimony of witnesses testifying before
court.
In most advanced systems, such asSingapore’s, the courts have madeextensive use of technological advances toenhance the efficiency of the courts. A
Witness Video-Link enables vulnerable
witnesses, such as child witnesses or
victims of sexual offences, to give theirevidence without physically being present
in the courtroom to face the accused. The
Technology Court was launched in 1995 in
the Supreme Court to facilitate thepresentation of evidence and otherinformation. Within this court, there arevideo conferencing facilities, an integrated
audio-visual system together with alitigation support system. Evidence isrecorded digitally as computer files. This
enables transcription to be done much
faster than previously done withaudiotapes.

452

V. TRIAL PROCESS - FREQUENTADJOURNMENTS
A. Problem
In most of the participating countries,
cases are generally tried on a piecemeal
basis. This means that the trial
proceedings are conducted in sessions
spread out over a period of time. Hearing
is set on one day and continued or
postponed to another day until each party
completes the presentation of evidence. For
instance, one witness testifies for an houror two for direct-examination in one
hearing, and then continues at the next
hearing for cross-examination.
Consequently, particularly in complicatedcases in which many witnesses are
examined, it takes a long time to complete
the trial.
B. Overview of the Current
Situation in Japan
It is evident that in Japan the difficulties
lie not in designating the first public trial
date, but in scheduling subsequent trial
dates. The courts are constantly grapplingwith problems created by the continuoustrial requirement. The court cannot always
schedule continuous trial dates whenconfronted with complicated cases, such as
those requiring the examination of many
witnesses or defendants.
One of the obstacles to theimplementation of continuous trial is thelack of cooperation between the Bench andthe Bar. The court faces great difficulty
persuading defence counsels to accept
continuous trial dates. Although thepresiding judge has sole authority
regarding the designation of public trial
dates, the court cannot proceed realisticallyand smoothly without the cooperation of
all parties. The court must consider adefence counsel’s heavy schedule andopinion when fixing a case for trial.

111TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
Defence counsel argue that continuoustrial dates prevent them from handlingother cases, especially civil cases, and may
cause them to lose work. In addition tothis workload problem, counsel always
claim that it is almost impossible for themto prepare adequately for trial if the court
opens trial continuously. As a result, thepractice of intermittent trial hearings has
not changed.
C. Countermeasures
1. Continuous Trial
The court should make appropriate
schedules for trials by seeking thecooperation of the parties concerned. Morethan one court session should be allocatedin advance, and most desirably on
consecutive trial dates. On the other hand,
there is another view on this point.
Intermittent hearings will bring about
equal treatment among cases, while
continuous or concentrated hearing willbring about more speedy disposition of acase once its trial has begun. However, if
the latter is selected, it will inevitably delay
the other cases pending in the trial roll.
In this regard, it may be recommended thatcases of special importance should be
handled as fast as possible. For example,
cases where many witnesses will be
anticipated to be examined at trial should
be handled as fast as possible.
2. Strict Non-adjournment Policy
A party might request the adjournmentof a hearing based on improper reasons,such as insufficient preparation.
Ordinarily, the court assumes a party
makes a motion in good faith.
Consequently, the court should carefully
examine motions and should not easily
grant adjournment of a trial date without
strong grounds.
In Singapore, a strict “no adjournment”
policy is adopted. Applications for the
adjournment or vacation of hearing dates

are scrutinized carefully, and theseapplications would be refused unless there
are good grounds. Strict control is
exercised for even those applications foradjournment made on medical grounds.
With effect from 15 February 1997, only
medical certificates, which state certain
prescribed details such as the diagnosis,
full name and designation of the medical
practitioner, and a statement that thepatient is to be excused from court
attendance and not merely from workattendance, are accepted.
3. Time Limits for Completing Trial
Providing a time limit for completing
trial is a more straightforward method forspeedy trial. However, difficulty lies in thefact that not all cases have the same levelof complexity. Some cases are extremelycomplicated and need a longer period oftime to examine witnesses. In the Republicof Korea, for example, there is a provision
which limits the time period for the
pronouncement of judgment. It stipulates
that the pronouncement of judgment incases where the defendants are in custody
must be delivered within two months. If
the court fails to follow the time limit, thedefendant in custody has to be released,though non-completion of trial in the above
time frame does not prejudice the trial.
VI. LENGTHY PRELIMINARYHEARINGS
A. Problem
In some countries, there is a preliminary
hearing or preliminary inquiry by amagistrate before the case is referred to thetrial court. Its purpose is to see whether
there are grounds for the accused being put
to trial. However, some problems can bepointed out. The hearing takes a long
period of time, amounting to about one to
two years, to complete. The preliminary
hearing creates a lot of unnecessary work,
which is a duplication of the trial. These453

RESOURCE MATERIAL SERIES No. 55
problems should also be within the scopeof the issue “speedy trial”.
B. Overview of the Current
Situation in Some Countries
1. Sri Lanka
Magistrates hold preliminary hearingsin all cases, which are triable exclusively
by the High Court, and in some other caseson request of the Attorney General. In the
preliminary hearing, witnesses are
examined and cross-examined relating tothe offence, and evidence is recorded by themagistrate. This preliminary hearing
takes a long period of time, sometimes two
years. It is noted that in Sri Lanka,
preliminary hearings were abolished oncein the past, but revived again subsequently.
2. Thailand
After institution of a criminal case by the
injured party, the court must order apreliminary hearing to see whether or notthere is prima facie case. In preliminary
hearings, the accused are not allowed topresent their own witnesses. Thus
preliminary hearings results in a long
delay in certain cases.
C. Countermeasures
Some participants expressed the viewthat preliminary inquiries are not held in
most countries. However, our group wasview that the preliminary hearing could act
as a method of screening. It also serves as
an additional check by the courts on theprosecution. Consequently, in order toovercome some of these problems, some
improvements should be made to theexisting procedures.
1. Disallowing Cross-examination at theStage of Preliminary Hearing
In the general discussion sessions, someparticipants argued on this point. If the
defence is not given a chance to crossexamine the witness at the time of thepreliminary hearing, it will be an injustice.

454

Since the prosecution will support the
prima facie value of the case, crossexamination is necessary for ‘check andbalance’. In Singapore, the defence counsel
does not cross-examine the witness. But
in order to counter-check, the defence isallowed to clarify some points.
2. Restricted to Complicated orControversial Cases
Some participants stated in the general
discussion sessions that this method iscontradictory to the judicial system of someof the participating countries, as most ofthese cases are tried by High Courts. In
other words, if a preliminary hearing is
conducted in these cases, it takes evenlonger to conclude the hearing since thesecases are difficult to handle.
3. Abolition
Some participants expressed that the
preliminary hearing should be abolished.
This has been done in Malaysia. However,others are of the view that preliminary
hearings should not be abolished totally,
but could be limited in certain ways toreduce delay. In this regard, limiting thecross-examination of witnesses to material
points was suggested by some participants.
VII. INADEQUATE PREPARATIONBY THE PROSECUTOR AND
DEFENCE COUNSEL
A. Problem
Heavy caseloads of prosecutors will leadto inadequate preparation for trial. Thus
inadequate preparation or non-preparation
would lead to postponement, which causes
delay in disposition of cases. Similarly, inmany countries, heavy volume of cases
handled by defence counsels lead toscheduling conflicts, and inadequate
preparation results in adjournments.
Moreover, failure by prosecutors to show aclear outline with regard to how they
intend to present their cases, make it

111TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
difficult for the court to allocate sufficient
time to hear and determine cases.
B. Countermeasures - Pre-trial
Conference
The pre-trial process in criminal
proceedings has drawn much attention
recently. At pre-trial conferences, theprosecution and defence are urged todisclose their respective cases andevidence, and are urged to agree on facts
which are not in dispute. By conducting
the conferences, the courts, as well as bothparties, can identify real factual and legal
issues, and will have reasonable prospects
for the trial. There is also a likelihood thatin the course of this process, the accused
will plead guilty when faced with theprosecution’s case and evidence. Moreover,last minute proposals for witness
examination can be avoided, and witness
examination can be made concentrating on
the necessary issues of the case. The court
should:(i) require, when it deems proper, bothparties to attend a pre-trial
conference to determine trial dates,
allocation of time to both parties, etc;(ii) designate trial dates necessary
beforehand, based on a plan madeduring the pre-trial conference, andshorten the interval between trial
dates;(iii)encourage the parties to discuss as
many problems as possible
beforehand, in order to prevent
unnecessary disputes at trial; and(iv)exclude improper questions andstatements by the parties.
For instance, in Singapore, pre-trial
conferences were introduced in 1993. The
courts now play an active role in the
management of cases, by ascertaining thestatus of the case and defining andclarifying the contentious issues for trial.
This cuts down on the time for hearing andsaves witnesses the inconvenience ofattending court, when their evidence will
not be disputed by the other party. Issues
and areas of dispute are identified, andreasonably accurate assessments in respectof the time required for the trial can thenbe made.
VIII. DILATORY TACTICS OF
DEFENCE COUNSELS
A. Problem
In many countries, some defence
counsels use dilatory tactics by filing
unnecessary motions for the review of court
orders, and prolonging the crossexamination of a material witness,presentation of corroborative witnesses toprove matters that have already been
established, etc. By these dilatory tactics,
the defence counsel hopes that the victim’s
feelings will decline, the public will lose
interest in the case, and the witnesses will
become tired and disappear. Moreover, thedefendant has to come before the court solong as the trial continues, and on each trial
date the defence counsel takes money fromthe defendant. So for financial gain also,
defence counsels desire postponement of
the trial.
B. Countermeasures - Sanctions
against Defence Counsels
In addition to the utilization of the above
mentioned pre-trial conference, sanctions
against defence counsels should beconsidered. For dilatory tactics, the court
can award costs against the defence counsel
and the court can take steps to report thedefence counsel to the Bar Council. Article
303 of the Rules of Criminal Procedure ofJapan states the measures available
against an act of a defence counsel causing
delay of a trial. It says that the court, if it
deems necessary, shall notify the Bar
Association to which the defence counsel
concerned belongs, or the Japan Federationof Bar Associations, requesting appropriate
steps be taken.
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IX. DELAY OF EXPERT REPORTS

X. CONCLUSION

A. Problem
In cases where a trial is based on
chemical or medical reports, a trial can bedelayed if it takes time for these reports tobe supplied. Delay of these experts reports
occurs quite often in some countries.

The role of judges in dispensing justiceis a sacred one, which demands that justiceis meted out to everyone concerned in thelegal process as speedily as possible. It is
often said that “justice delayed is justicedenied”. However for the sake of achieving
speedy justice, the quality of justice should
not be sacrificed. There is a need tomaintain a balance between speedy trial
and fair trial. Public confidence in the fairadministration of justice is very important.

B. Overview of the Current
Situation in Some Countries
In Sri Lanka, submission of chemical
and medical reports in connection withcriminal cases before the court is always
delayed, which is a strong cause of trial
delay. Waiting for these reports, most ofthe ‘heinous offence’ cases remain pendingfor years before the court. Someparticipants pointed out in the general
discussion sessions that expert reports are
submitted at the time of investigation, forwhich often investigation is delayed. Invery controversial and complicated cases,
the court may ask for a second opinion of
the expert report, which has been
submitted by the investigating officer. Thatmay cause trial delay. Additionally,
forensic reports are often not submitted by
the expected time, since most of thedeveloping countries do not have facilities
for forensic laboratories etc.
C. Countermeasures - Time Limits
for Submitting Reports
On this point, some participants
expressed that, in reality, it is almost
impossible to provide time limits forexperts, since experts are very limited intheir countries. Additionally, there was anegative view on this point, since theaccuracy of reports is more important thanmere early submission. One participant
recommended that meetings with experts
should be conducted from time to time inorder to see progress, and the format of theexpert report should be provided to easily
respond to questions.

456

It is our considered view that causes fordelay in concluding trials are common to
many countries. We fully understand thatsome of the issues which have been
discussed in this paper are interrelated.
Consequently, the countermeasures
discussed are also interrelated. For
instance, time frames for trials could not
be implemented unless the problem ofoverloading is solved. The investigating
officers, public prosecutors, defence counsel
and the judiciary should all do their best
to ensure that trials commence as soon as
possible, and once commenced, every caseshould be disposed of impartially andwithout undue delay.
The recommendations proposed may not
be acceptable to all the participating
countries, due to the social and economic
conditions prevailing in those countries.
Our intention has only been to suggest
some effective countermeasures for the
problems discussed in this paper.