Sat | Oct 21, 2017

Mark Golding | Case backlog - some thoughts

Published:Sunday | January 15, 2017 | 12:00 AM
Mark Golding
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There have been reports in the media of remarks made at the recent opening of the 2017 Hilary Term at the Supreme Court about the increase in the number of new cases coming to the Home Circuit Court for trial.

In our justice system, more serious offences such as murder and rape are tried before a jury in the circuit court, which is the criminal branch of the Supreme Court. These cases first enter the court system at the level of the parish courts (formerly called resident magistrate's courts), where each case undergoes a vetting procedure to determine whether there is sufficient evidence for the case to be sent to the circuit court for trial before a jury.

Prior to 2016, this vetting procedure was a sort of 'mini trial', called a preliminary enquiry, which required the witnesses to attend court to give oral testimony. A considerable backlog developed in the lower courts of these preliminary enquiries, often taking several years to be completed. The procedure also exposed witnesses to the frustration and risks of multiple court visits. However, a new vetting procedure came into effect in January 2016 under the Committal Proceedings Act, which allows the parish judge to review the statements taken by the police from the witnesses to the crime and to determine whether there is sufficient evidence for the case to be sent to the circuit court for trial.

 

More efficient

 

The new procedure is more efficient, as shown by the numbers reported for the 2017 Hilary Term in which 144 new cases have come up to the Home Circuit Court for trial, in comparison to only 16 new cases in the 2016 Hilary Term.

It is misleading to characterise the increase in cases coming up to the circuit court for trial as worsening the backlog in the court system. The following points should be noted:

1. These so-called 'new' cases are not in fact new and have already been making their way through the court system for some time. The effect of the current vetting procedure is that these cases now reach the court, which has jurisdiction to try them (i.e., the circuit court) more speedily, rather than clogging up the lower courts in an inefficient process and worsening the case backlog in the parish courts. The efficiency of the new procedure allows parish judges to spend more time disposing of the large volume of cases over which they have jurisdiction. This is important since the parish courts have jurisdiction over the vast majority of criminal cases in the system.

2. In Jamaica, a person accused of a criminal offence has the right, guaranteed under our Constitution, to a fair trial within a reasonable time. The vindication of this important constitutional right requires that cases move swiftly through the system to the court where the cases are to be tried and that the cases are disposed of efficiently once they get there.

3. A vetting procedure at the lower level remains useful as it ensures that the higher courts are not burdened by cases that have no chance of being successfully prosecuted and ought not to be sent to trial.

The alarming statistic is that in the recently concluded Michaelmas Term, only 60 of a total of 536 cases on the trial list were completed. This is a case disposal rate of less than 15 per cent per term in the Home Circuit Court. A similar problem afflicts the other circuit courts across the rest of Jamaica. This dire situation is not new and has been a recurring feature for many years.

 

Below rate

 

With a case disposal rate of consistently less than 15 per cent, whether the trial list is 536 or 620 cases is really neither here nor there. The problem is not that 144 new cases have been vetted by the parish court and sent up to the Home Circuit Court for trial, in comparison to only 16 a year ago. Those cases were already in the system and must either proceed to trial or be thrown out.

The problem of a very low case disposal rate is at the heart of the challenges facing our justice system. An important part of the solution is to increase the capacity of the system to dispose of these cases on a timely basis. As things stand, there are only four courtrooms to service a trial list of about 600 cases in the Home Circuit Court each term and a similar number of courtrooms for the Corporate Area Gun Court (which has an even longer trial list). This arrangement simply cannot handle the workload of these important courts. We must make available sufficient courtrooms, judges, prosecutors, and court staff to handle the case volume and get the case-disposal rate each term up from less than 15 per cent to as close to 100 per cent as possible.

Achieving this is not above us and does not require a huge allocation of resources relative to many other things that Government spends money on. But it does require that fixing this problem is recognised as a national priority, to be addressed with absolute determination and a spirit of cooperation among all stakeholders.

It must be understood that this is critical to both justice and national security as criminal justice is really a single continuum in which investigation, case preparation, prosecution, judicial adjudication, and the correctional system are all related elements. The chronic delays and low case-disposal rates in our courts promote a sense of impunity among criminals and incentivise abusive practices among law-enforcement operatives, undermining confidence and hope across our society. A transformational improvement in case-disposal rates is, therefore, fundamental to achieving our national development goals.

In closing, it is worth noting that some jurisdictions have moved past having a vetting procedure in the lower courts for cases that must be tried in the higher courts, and instead, have a pre-trial vetting process in the higher courts. However, they have reached that point after decades of reform effort by investing in their justice systems and modernising their court technology and trial procedures.

Improving the efficiency of our vetting procedure in the parish courts has been a step towards this, which is also assisting the case-disposal rate at that level, where most of our criminal cases are dealt with. While there have been a few operational glitches in the roll-out of the new procedure, these are being resolved as the statistics quoted above indicate. When we have built adequate capacity within the system as a whole, we will get to the point where we can have all serious cases enter the court system at the level where they are to be tried without going through a vetting procedure at the lower courts.

- Senator Mark Golding is opposition spokesperson on justice and governance. Send feedback to columns@gleanerjm.com.