Peter Champagnie: Doing an injustice to justice
There seems to be a penchant for some of us to pontificate about matters about which we know precious little. Time is hardly ever taken to obtain first-hand knowledge about that of which we speak. Against this background, reference can be made to recent statements attributed to Deputy Commissioner of Police Glenmore Hinds in the media about court backlog causing prosecution of cases under the Criminal Justice (Suppression of Criminal Organisation) Act, popularly referred to as the anti-gang legislation, to languish.
While it is a fact that hundreds of persons have been arrested under this legislation and their cases are yet to be tried, the reason is not simply as a result of cases in the system. The fact of the matter is that the legislation, as drafted, invariably requires a self-confessed gang member to give a written statement to the police against another gang member who is then arrested and charged by the police.
This self-confessed gang member-turned-prosecution witness, as custom would dictate, does not attend court to give evidence against their own when called upon. Indeed, often, the statements are given by such persons to avoid prosecution or attention being focused upon them by the police. It is within this context that cases that are brought under the anti-gang legislation have not seen any successful prosecution, thus adding to the already large number of cases to be tried.
Deputy Commissioner Hinds' statement, therefore, does not accord with the reality of the situation and represents a simplistic view of the real problem. He has failed to focus on the real issue. Indeed, his failings are not too dissimilar to that of the newly appointed justice minister, Delroy Chuck, QC, under the Jamaica Labour Party administration. One will recall that the minister's own party campaigned under the theme and slogan 'Economic Prosperity'. Having an efficient justice system is a condition precedent to achieving economic prosperity. It was, therefore, refreshing that one of the first issues placed on the table after the Jamaica Labour Party won the general election was a concern by its justice minister about the backlog of cases.
Investors both local and international are not likely to invest in an economic climate where industrial and commercial disputes that become the subject of litigation have no reasonable prospect of being resolved because of a backlog of cases. However, in an article published in The Gleaner on April 3, 2016, the minister sought to lay blame squarely at the feet of the judges. He asserted that they perpetuated a culture of delay. Such an assertion is unfortunate and unfounded.
Save and except for illness, judges (limited as their numbers are) are always present in court for cases to be tried. Cases are not adjourned because of their absence or unpreparedness.
Quite frankly, the reasons for the backlog of cases are as follows:
1 Absence and/or unpreparedness of lawyers.
2 Absence of prosecution witnesses, not the least of which includes witnesses who are members of the Jamaica Constabulary Force.
3 Inordinate delay in the presentation of forensic, ballistic, and Cybercrime Forensic Unit reports that are integral to the prosecution of some matters before the court. Cases are sometimes held up for more than five months awaiting such reports. One must also bear in mind that there is only one forensic laboratory that serves the entire island. The expectation is that this one laboratory is to produce forensic reports for cases in the courts across the island in a timely manner. This expectation is clearly unrealistic.
4 A shortage of judges and prosecutors. In respect of judges, for example, one only has to examine the fact that there are only seven judges that serve the Court of Appeal, and this number has been the same since Jamaica's Independence in 1962. For this number of Court of Appeal Judges to be adequate in 2016, the crime rate would have to be at the level it was at in 1962.
5 A shortage of courtrooms. The total number of courtrooms allotted at the Supreme Court Building for the trial of criminal matters is seven. This is against the background that in any given week, there is a total of approximately 30-50 cases ready to be tried. It is obvious, therefore, with this imbalance of numbers, that is to say, the number of courtrooms vis-‡-vis the number of cases to be tried, there is likely to be a backlog.
The solutions to the ills of the justice system are clear and can be summarised as follows:
1 An increase in the number of criminal courts. The Government is itself the owner of unoccupied buildings in the Corporate Area and certainly can compulsorily acquire land to facilitate the building of new courthouses.
2 Serious consideration must be given to an increase in the budgetary allotment with a view to having additional judges and prosecutors. I make bold to say that this is more important than the fulfilment of any election promise in so far as the taxation system is concerned. To do otherwise is to add more credence to the statement of the one-time politician and the late president of the Court of Appeal, Carl Rattray, where he observed that seeking to improve the justice system did not translate into politicians getting more votes from the electorate.
3 Follow through on new legislation that cannot be implemented because of the failure to formulate regulations to such legislation that would bring them in actual operation. A classic example of this is the recent amendment to the Evidence Act, which now allows for the testimony of witnesses who have migrated to be received into evidence via video link. Witnesses being beyond the shores of Jamaica and being unable to attend court here for whatever reason is no longer an impediment to matters being tried because of their absence here. There is, however, one small problem with this legislation. The regulations and/or protocol that should address where that witness overseas is to give his or her evidence by video link and who should be in attendance and administer the oath to that witness has not been addressed at all. The result of this is that cases are still being adjourned where witnesses are overseas because of the lack of these regulations. The amendments to the Dangerous Drug Act and its full operation are also somewhat similarly affected. Although the legislation provides for persons found in possession of a small quantity of ganja to be ticketed and not charged or summoned to court, the police are yet to receive any ticket books. It is now approximately one year since these amendments have been made to the Dangerous Drug Act and the police are still without ticket books. The lack of ticket books creates an injustice for persons so found in possession of small quantities of ganja since they have no alternative but to attend court, and in some cases, wait for hours for their cases to be called up and be disposed of.
4 A remodelling of the existing operation of the night court is long overdue. At present, the night court sittings are from 5 p.m. on weekdays to 9 p.m. In respect of the Half-Way Tree Criminal Court, there are at least eight courtrooms that are available for such sittings. However, what really obtains is that the night court operates with only one magistrate hearing cases in which accused persons do not have attorneys. These cases often involve offences that are domestic in nature or are not very serious. The idea of inviting private practitioners with the requisite number of years and experience at the Bar to volunteer their time to sit at night court in the remaining vacant courtrooms at Half-Way Tree, for example, as is practised in other jurisdictions, is not something that is unrealistic and could be canvassed.
Until we are serious about accepting what the real problems are in the justice system, there will always be a case overload. Until then, the blame game must stop and certainly should not be laid at the feet of the judges who now appear to be easy targets in light of the convention where they are not permitted to publicly respond to criticisms made against them.
- Peter Champagnie is an attorney-at-law. Email feedback to firstname.lastname@example.org.