Paper committals, justice, and the human element
There was much food for thought during the week as our political leaders debated the Magistrate’s Court (Amendment) Bill 2016 in the Lower House.
One of the major areas of discussion related to paper committals and the need to abolish preliminary enquiries. The idea of paper committals is of course nothing new. They were introduced in Barbados in the 1980s but were optional where accused persons and their legal representatives could choose whether to utilize traditional preliminary hearings or go the route of the committals.
A handful of cases were heard at the Supreme Court via the paper committal system. But, by and large, the system was spectacularly ignored by all concerned. Lawyers gained financially by “being briefed” at the Magistrate’s Court and collecting further “brief” at the Supreme Court. Then, on the State’s side of the equation, prosecutorial errors could be more easily rectified during preliminary hearings. Having shared all evidence as required through the paper committal system, a prosecutor’s case could be damned if improper or erroneous evidence reached the willing hands of defence counsel. The crux of the matter is that the paper committal system never gained much popularity in the 1980s and 1990s and largely disappeared – in practice – from the the judicial system in Barbados.
We would believe that its resurrection is to be made along lines where that optional element is removed and paper committals are made mandatory. In theory, as it was three decades ago, the idea of paper committals is an excellent one. But it failed before because of the human element, not because of its legislative muscle or the lack thereof. If paper committals are now made mandatory, this will not equate to improvement in the dispensation of justice and the clearing up of the massive backlog of cases in the system. The human element will once again determine its success.
There is a culture of sloth and a mañana attitude that pervades Barbadian society. And we would be fooling ourselves if we even contemplated that the judiciary and all the elements involved in ensuring ordinary citizenry access due process in a timely manner, were immune to this virus. While paper committals have the capacity to speed up the judicial process, the human element can easily lead to the removal of gridlock from one location and placing it at another.
One comment by Attorney General Adriel Brathwaite, who introduced the bill this week, was instructive as to the thinking that must be removed from our psyche. During the debate he stated that under the current system the accused was entitled to cross-examine prosecution witnesses, call witnesses and give evidence, and that all of these procedures could take up to four years to complete. That, we suggest, is rubbish! It happens, but it should not.
Independent Barbados has not had anyone on trial for treason, thus murder, as far as a capital offence is concerned, is as serious as it gets. Persons being kept on remand for five, six, even eight years, awaiting trial is a new phenomenon. This island has seen murder trials being completed within two years, inclusive of sentencing. In such a small jurisdiction as Barbados, with a negligible murder rate, with witnesses inevitably being the boy or girl next door, we ask Mr Bratwaite: why should it take four or five years to call witnesses, cross examine witnesses or give evidence? That delay and denial of justice do not occur because of systems, they occur because of people.
Of course, there are other matters attracting the courts’ attention. But many of those are also clogging up the system as well due to myriad reasons, which, when investigated, have their genesis in the human element.
With the reinvention, rejigging or re-oiling of the wheel about to come on stream, our political directorate and those directly in the system need to do a number of things to ensure that the paper committal system is the success that we all hope it will be. There will be a need for additional judges and the necessary technology in terms of the recording of evidence. After all, complaints about judicial sloth in Barbados that emanate from the Caribbean Court of Justice, are normally directed at the Supreme Court, not the Magistrate’s Court.
Something will have to be done about the culture of adjournments endemic in the system. Some stated limitation should be placed on the number of adjournments that defence attorneys and prosecutors request. The process for warning witnesses must be tightened. The marshal’s office must be provided with adequate personnel to carry out this function.
A serious attempt must be made to improve on the timely production of case files in the Royal Barbados Police Force. With the advent of paper committals officers will need to receive enhanced training in the preparation of these documents. It must be appreciated that when copies of all evidence are produced to accused’s attorneys, that is basically the gospel according to the State.
Perhaps the best contribution in this week’s debate came from St James North MP Edmund Hinkson who highlighted one of the problems as it relates to the human element.
“The time has come for this Government to bring before this Parliament a Limitation of Time Period for Rendering Judicial Decisions Act. There is absolutely no reason why someone trained to be a judge cannot give an oral decision as soon as a case is finished,” he said.
“We as the political directorate have to lead the way, and if the judges won’t give their decisions, put some time limits on them by way of legislation.
“We see judges, a lot of them, retire with decisions outstanding, and still be paid their gratuity. They should not be paid their gratuity until they write and render all outstanding decisions,” Hinkson insisted.