Finding the best way forward for the judiciary
Director of Public Prosecutions Mr Charles Leacock, QC, recently gave much food for thought, while delivering an address to the participants at a Regional Security System’s course on prosecuting drug offences. He touched on the backlog of cases in the judicial system and called for an overhaul of the justice system.
If one takes into account the criticisms that Barbados’ judiciary has received from the Caribbean Court of Justice as it relates to delays in the system, as well as the many instances of cases being dismissed for lack of prosecution, then Mr Leacock’s suggestions were timely and worthy of attention. There can be no argument that Barbados’ judiciary has not been up to mark for many years and that there is a need
However, Mr Leacock’s suggestion that we do away with trial by judge and jury and leave indictable matters to the determination of judges only is fraught with flaws. Of course, this is not to say that trial by jury does not have its drawbacks. No system is perfect. But Mr Leacock’s argument that trial by judge will alleviate backlogs in the judicial process is taking a rather simplistic view of the situation.
Trial by one’s peers still has its place. There is likely to be greater public acceptability of verdicts reached by jury than one is likely to find where a solitary judge makes a determination. Mr Leacock made the argument that jury tampering and jury intimidation would be eliminated with the abolition of jury trials. But he failed to consider the notion of judge tampering or the intimidation of judges. If only based on numbers, one would suggest it is easier to tamper with or intimidate one judge than to do so with a jury of nine or twelve. One would also suggest that elements of bias are more likely to be negated among 11 jurors than with a solitary judge.
It is important to note that in Barbados the backlog in cases often occurs not as a result of what happens before the judge and jury, but what occurs before matters even reach the law courts. In dismissing Mr Leacock’s call for discontinuation of jury trials, President of the Barbados Bar Association Liesel Weekes placed the argument in proper perspective. She noted: “I’m not certain that doing away with a jury trial is going to significantly impact the backlog. The pre-trial stage is where the delays occur and so we have to look at what transpires there, where those delays occur there, so we can alleviate those delays that occur, prior to trial. I don’t know what significant difference doing away with jury trials would be in a criminal matter.”
Weekes added:”When the trial starts, I don’t get the impression that the delays occur in the trial of the action. Criminal matters usually tend to start and finish . . . and the only trials for which we have jury in Barbados [are] criminal trials.”
Thus the emphasis must be placed on what leads to delays in prosecutions before cases get to court. Presently, one of the most distressing situations is the failure of the crown to produce case files to the law courts. Almost every week cases are dismissed for lack of prosecution because files have not been produced, sometimes five, six, or more years after arrests have been made. It is true that when these cases are dismissed at the Magistrates’ Court that this is one way of “clearing backlog”. But this also means that somewhere in Barbados a victim of a crime has not received justice because of the indifference or negligence of some law officer.
Of course, there are other procedural elements that lead to the backlogs; attorneys-at-law not being “properly briefed” and hence seeking adjournments, ad nauseam, until they do get “briefed”; witnesses absconding or simply not being found; accused on bail not turning up for cases; insufficient working hours in some courts; insufficient magistrates; the failure to write timely decisions; insufficient marshals to serve court documents; and a host of other niggling reasons. These circumstances have absolutely nothing to do with a jury.
Putting Mr Leacock’s argument in a different perspective, he appears to be of the opinion that having a judge preside solely over indictable criminal matters will improve the turnover of cases. This is a fallacy as he is attributing to the judge a level of proficiency and efficiency that is simply not guaranteed to be automatic.
At the civil court level our judges have come in for severe criticism for their sloth in doing their jobs. We make reference to the judgment of the Caribbean Court of Justice in the case of Winton Campbell versus The Attorney General, April 3, 2009. Before delivering its decision and dealing with the substantive issue, the court had this to say:”Before addressing the above points, it is unfortunate that we cannot overlook that Justice Waterman took three years to deliver his judgment, while the Court of Appeal took almost four and a half years.”
Here was a situation where it was our judges – not a jury, nor a clerk, nor a police officer, nor an attorney – who were responsible for basically breaching Section 18 (8) of the Constitution as it relates to a plaintiff being “given a fair hearing within a reasonable time”.
The present functioning of our judiciary is a dire situation that merits serious national debate for the benefit of us all. Enough said!