Wed | Oct 17, 2018

Zahra Burton | The justice system, an impediment to press freedom.

Published:Sunday | January 7, 2018 | 12:00 AM

In 2014, police officer Wayne Hamil shot and injured a taxicab driver in Hopewell, Hanover, a crime for which he was convicted. He was fined $1 million or three years in prison. He chose to pay the fine.

Despite this conviction, Hamil retains his innocence and asked 188 North to investigate. We tried. But alas, the first step of getting his case file to review would prove difficult, as in September 2016, the administrator of the Supreme Court, at the time, told me that I was not an interested party to the case. Even if I showed up with Hamil to access his file, she said, the court would still turn us down, as the file belongs to the court, and not to the accused. The accused needs to get his file from his attorney.

Upon checking with the registrar, Mrs Nicole Walters-Wellington, I got conflicting responses.

There's one email quoting her through the Court Management Services where she said, "At the Supreme Court, the general principle is that parties to an action or a person who can demonstrate that they are an interested party are permitted access to documents filed in a case. Also, if a party to an action consents to a third party having access to documents filed in their case, this is usually accommodated by the registry."

But then later, in a separate email, the registrar said, "Access to criminal case files is treated according to the nature of the documents that comprise the files such as statements etc. These documents are privileged, and are usually not accessible, even by the accused person."

The registrar went on to say, "All requests to access criminal case files and documents must be made in writing to the registrar for a determination to be made."

I have all kinds of problems with this.

Problem 1: The conflicting information received from the administrator and the registrar.

Problem 2: Hamil commits a crime against the state, and I, as a reporter, or even a member of the public, can't see the details of his offence? Only interested parties? (I've heard indictments are possible, but I have yet to get one).

Problem 3: How are the sittings of these cases open to the public, but the documents filed by the parties privileged? How is it that in the Appeal Court you can get access to criminal case files, as I have in the past but not in the Lower Court? Are they not privileged in the Appeal Court too? And how come you can get access to civil case files, but not criminal case files in the Lower Court?

Problem 4: When persons are innocent, how do we, as reporters, investigate if we can't access their files?

Problem 5: Why is it up to the discretion of the registrar to determine if she will allow access? Can she just block me? (She says no based on internal rules, but I'm sceptical.)

Problem 6: In the United States, you can easily get the full complaint and other details of a federal criminal case in a system called PACER. Why not here?

Upon further investigation, I found out two key reasons I cannot access criminal court files in the Lower Court are because:

1) Transcripts of each case are supposed to be made, but they are usually not ready in a timely manner, and

2) There are no court rules for the public to access these files.

 

Civil procedure rules

 

In 2002, The Rules Committee, chaired by the chief justice, came up with the Civil Procedure Rules, which allow the public access to most civil case files. Not so criminal cases. According to the Court Management Services website, "The (Rules) Committee is presently considering a similar revamp of the practice and procedure in courts exercising jurisdiction in criminal cases to introduce case management in those cases as well."

The registrar confirmed in a letter dated February 16, 2017, "There are no written rules concerning access to criminal case files and documents," although there are other rules in relation to criminal case management. She goes on to say, "There is an initiative being pursued now to seek the necessary interventions to deal with this area."

Come now! This matter needs to be remedied as soon as possible. I'm calling on the justice minister, the chief justice, and The Rules Committee to do the following:

- Set a clear deadline for creating rules surrounding criminal case files access. Since 2002 when the Rules Committee produced civil case rules, this committee has been working on criminal rules, and none on public access to documents for 15 years? Rubbish!

- Eliminate this situation regarding discretion of the registrar, and give her some rules that are clear to the public to work with.

- Educate the staff at the court regarding what they can give to those enquiring, and have uniform rules that eliminate misinformation.

- Incorporate the Press Association of Jamaica (or me) and civil society actors like Jamaicans For Justice into discussions about drafting rules for access to criminal case files. It cannot be that the Rules Committee is made up of all judges and lawyers, who don't understand the importance of access to information as a check and balance on all aspects of government and the judiciary, including them.

Journalists could also try to recommend solutions that balance their need for information with real concerns like witness safety if we have a seat at the table.

- Give accused persons full access to their files.

- Revamp the Access To Information Act to secure access to criminal case files.

As for Wayne Hamil, I may never take up your case as I don't promise on stories, but thanks for giving me the opportunity to realise this inability of us as journalists to independently assess the cases of those who think they are wrongfully convicted and what is obviously an impediment to justice and press freedom!

- Zahra Burton is executive producer of 188 North. Email feedback to columns@gleanerjm.com and zahra@eighteendegreesnorth.com.