Wed | Sep 20, 2017

Peter Champagnie | What’s really wrong with justice

Published:Sunday | October 2, 2016 | 10:54 AMPeter Champagnie

Your editorial of Sunday, September 25, 2016 titled ‘Time for real justice reform’ is, to a large extent, typical of those critics who pontificate in blissful ignorance of what the real problems are with our justice system. Precious little time is ever given to determine what already exists and what are the real shortcomings of our justice system. 
Such critics are oblivious to the facts and express their opinions without the truth being allowed to get into the way of their good stories. A typical example of this is your reference to Italy, in which you have identified laws existing in that jurisdiction which allow for the seizure of assets from both criminals and the facilitators of crime. You concluded that the Italian model represents one example where well-targeted legal reform can transform the justice system. 
The fact, however, is that the Italian model already exists in Jamaica. Almost a decade ago, our Parliament enacted the Proceeds of Crime Act. By virtue of Section 32 of this act, prosecuting authorities are enabled to make applications to the court for seizure of assets believed to have been obtained by persons enjoying a criminal lifestyle. Indeed, financial institutions, real-estate bodies, car dealers, accountants and lawyers are all required under this act to report to the authorities any suspicious transactions involving large amounts of cash with their customers or clients. Failure to do otherwise can result in criminal charges being brought. 
The suggestion was also made in your editorial that we should also follow the United States of America in imposing denial of tainted assets during trial, so that criminals cannot pay their legal fees with the proceeds of crime. Alas, this already exists in Jamaica by virtue of Section 33 (4) (a) of our Proceeds of Crime Act. 
The Jamaican justice system is not short of laws. However, what we are short of is an honest recognition of what the real problems are within our justice system.
The reality is that successive governments have never placed any premium on the modernisation or expansion of the critical areas within our justice system. We are still, for example, limping along with virtually the same number of courtrooms and judges. We are working with a justice system that was designed to meet a caseload that obtained in 1962.
The increasing tendency to blame our judges for the backlog of cases by those who, in some instances, have never participated in the trial process before any court for decades, or have never left the confines of their lofty offices to examine what the real issues, are must stop. The public, for example, must be made aware of the following set of circumstances that now obtain within our justice system:
1.  Whereas all courts (save and except for the Court of Appeal) across our island are gazetted to commence at 10 a.m. promptly, there exists only one police vehicle for the Corporate Area to transport those accused persons who are in custody to the courts. The police are expected to use this vehicle to collect these accused persons on any given day from no fewer than five locations. These locations include: Metcalfe Street, Horizon Adult Remand Correctional Centre, Kingston Central Police Station, Half-Way Tree Police Station and the Tower Street Adult Correctional Centre. 
With the use of this single vehicle covering all of these areas, the expectation is that all prisoners will arrive for the commencement of court at 10 a.m. for their matters to be heard. Is there any wonder why, therefore, on any given date, the courts in the Corporate Area do not start on time?
In some instances, cases involving these accused persons are adjourned, leaving witnesses, lawyers and judges frustrated because such accused persons are not brought to court at all as a result of the occasional breakdown of this single police vehicle.
2.  For almost a year, arguably the most important court in the Corporate Area has been without a permanent parish Judge.  In this regard, reference can be made to the court at Half-Way Tree, which is assigned to deal with the reception, disposal or committal of all murder cases involving the use of firearms from the parishes of Kingston, St Andrew and St Catherine.
Invariably, judges assigned to their specific courts with their trial lists have had to aid this court. It is unfair to these judges, as they are expected to preside over their own courts but also on the same day expected to preside in this particular court, which, incidentally is no different from a sauna because of poor ventilation and no operable air-conditioning unit.  The conditions of this particular court are easily replicated in many other courtrooms across the island. 
These circumstances certainly do not engender a comfortable stay for those who are required to be in attendance in court, and, if anything, add to the increasing list as to why witnesses and potential jurors are reluctant to be involved with the justice system when called upon to so do.
3.  In other jurisdictions within the Caribbean and elsewhere, judges are assigned specific periods to be in their chambers for the purpose of writing outstanding judgments. This practice operates smoothly where the number of judges are adequate and the resources are available to facilitate preparation of written judgements. In our jurisdiction, however, no such thing obtains. The limited number of available judges are expected to be in court every day. Where is the justice for the judges in this? 
4.  Legislation is passed in our Parliament with perhaps the largest contingent of lawyers therein without proper analysis as to their suitability for our jurisdiction. The latest example of this has been the Committal Proceedings Act, which came into effect in January 2016. The expectation was that this act would abolish preliminary enquiries and, by its operation, cause speedy dismissal or committal of matters of criminal cases to the Circuit Court. This is not really proving to be the case.
Certainly, in respect of the Corporate Area, no more than six (if so many) have been committed to Circuit Court under this new legislation as opposed to many in the last court term. Indeed, it is interesting to note that on May 28, 2013, committal procedures in England were abolished.  What obtains now is that serious matters are sent straight to the Crown Court from the Magistrates Court for a pretrial hearing. The matters are then subsequently placed on the trial list. 
The rationale behind the abolition of committal procedures in England seemed to have been the delay of these cases moving forward. Ironically, but perhaps not surprisingly, our jurisdiction has now taken on that which has been discarded other countries where state resources are far greater than ours. Sensible move, indeed, on our part!
Discourse towards seeking to improve our justice system must always be encouraged. However, such discourse must not be predicated on any false premise or with scant regard for the facts. There must also be fair and responsible journalism.
Additionally, politicians should stop playing the blame game with the justice system and confront the real issues.
Finally, it behoves all lawyers who practise regularly within our courts to let our voices be heard on what the real problems are with our justice system. To remain silent is a betrayal of the canons of the profession, which imposes upon us an obligation to assist in the improvement of the legal system.
We cannot allow the discussion on our justice system to be hijacked by those who have absolutely no experience in the subject area of which they speak and care very little to acquaint themselves with the truth or to be properly advised. This has been a perennial problem that has, for decades, impeded Jamaica’s development.
  - Peter Champagnie is an attorney-at-law. Email feedback to columns@gleanerjm.com and peter.champagnie@gmail.com.