Kiss UK Privy Council goodbye

Patrick Robinson, GUEST COLUMNIST

I may have the dubious distinction of having initiated what has become an undue focus on the rate of reversals of Court of Appeal decisions by the United Kingdom Privy Council. My letter to The Gleaner, dated March 11, 1991, was a response to criticisms that our judges were stupid, incompetent and their decisions were frequently reversed by the UK Privy Council.

I explained that the reversal of a decision by a higher court will only rarely imply that the judges in the lower court are stupid and not competent. I asserted that "law is basically an interpretative, persuasive and evaluative discipline. In law, there are very few eternal verities and mathematical certainties."

what statistics show

I then went on to do the unnecessary: to examine the statistics. The research showed that in the period from 1962 to 1990, of 268 appeals to the UK Privy Council, 74 were allowed, or 27 per cent; that, as will become evident later, is a relatively low percentage of reversals.

In my address to the Cornwall Bar Association in 2009, I looked not only at the number of Jamaican Court of Appeal decisions overturned by the UK Privy Council, but also at the number of England and Wales Court of Appeal decisions overturned by the House of Lords.

The comparison between the two appellate bodies is apt, since the judges hearing appeals from them are drawn from the same body, i.e., the House of Lords (note that since 2009, the UK Supreme Court has replaced the law lords of the House of Lords). The survey showed that the appeals allowed were roughly the same for both appellate bodies: between 30-40 per cent. This prompted me to say that on the basis of that statistic, our judges were as good as, or if you prefer, as bad as the UK judges.

In some years, the affirmation rate is very high. This year, for example, of 10 appeals heard so far from the Jamaican Court of Appeal, the first and only one to have been allowed by the UK Privy Council is the recently, much-publicised case of Anneth Livingston v R. Thus up to October, the Court of Appeal has an affirmation rate of 90 per cent for 2012 - an inconvenient truth overlooked by those who would present that case as an indication of a kind of systemic weakness in the Jamaican judiciary.

Why is it that in Jamaica we treat the overturning of a decision of the Court of Appeal by the UK Privy Council as a national disaster, shame or failure, when in any other country, including the UK, the reversal of a decision by a higher court is a quotidian occurrence, not warranting the attention we give to it?

The answer lies deep in a psyche, shaped and twisted by centuries of colonial socialisation, a psyche that conditions you to expect to find inferiority in your own when what is staring you in the face is anything but inferior. If that rationalisation is rejected, the only other explanation is sheer 'bad-minded' cussedness or dishonesty, or perhaps a mixture of both.

reversal rates

The rates of reversal of England and Wales Court of Appeal decisions by the House of Lords and the Supreme Court for 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, and October 2009 - March 2010 are 51%, 46%, 51%, 41%, 55%, 24%, 29%, 56%, and 45%, respectively (the percentages provided by Dean Oswald Harding (letter of October 7, 2012), former attorney general and president of the Senate, are correct, but they appear to relate to all the appeals heard by the House of Lords).

The period shows a yearly average reversal rate of 44% as against 42% for the Jamaican Court of Appeal during the same period. The point is incontrovertible: Jamaican Court of Appeal judges fare no worse than their UK counterparts when their decisions are considered by the UK Privy Council and the UK Supreme Court, respectively.

But significantly, the rate of England and Wales Court of Appeal reversals has not induced in the authorities and people of the UK any undue concern about the overall competence of their judiciary; the UK does not outsource its appellate functions to the judiciary in France or Germany for the reason that 30, 40, 50 or 55 per cent of their Court of Appeal decisions are overturned. That happens in the judicial system of every country and is explained by the nature of law itself, which is more an art than a science.

So, may I say to Mr Robert Mitchell (letter of October 17, 2012), a reversal rate of 38.89 per cent of the Court of Appeal's decisions is not a bad record; certainly, it is a record that is no worse - in some years it is better - than the percentage of the England and Wales Court of Appeal decisions reversed by the House of Lords.

Mr Mitchell, reversals are seldom a comment on the competence of the lower court; in law, essentially an interpretative and evaluative discipline, higher courts will inevitably, at times, espouse a view of a legal issue that differs from the one taken by a lower court. Mr Mitchell, you say that the thought that the chances of your receiving justice in our local courts are less than two-thirds makes you very uncomfortable. May I, respectfully say, Mr Mitchell, that on that basis you would be very uncomfortable in many countries, including the United Kingdom.

But I do not wish to dwell too much on figures and percentages, because that would appear to make the question of the abolition of appeals to the UK Privy Council dependent on the number of appeals from the Jamaican Court of Appeal allowed or dismissed. In truth, the abolition of appeals to the UK Privy Council does not depend primarily on whether 10%, 30%, or 60% of the Court of Appeal decisions are reversed by the UK Privy Council. We must leave the UK Privy Council because, 50 years after Independence, the affirmation of our sovereignty requires no less. May I now declare the unnecessary labour over?

our capacity for greatness

We in Jamaica and the Caribbean have every reason to be confident in our capacity to dispense justice, and to do so fairly. A region that has produced Norman Manley, Sir Arthur Lewis, Derek Walcott and Rex Nettleford should never be diffident about its capacity for greatness. We are a brilliant and just people and entitled to the benefit of a presumption of greatness and fairness, rebuttable only by good, solid evidence. No such evidence has ever been adduced.

If in 1962 the predilection for continuity over change led to the retention of the UK Privy Council as the final court of appeal, there can be no justification, 50 years afterwards, for maintaining a system that outsources a huge chunk of Jamaican sovereignty to a group of foreigners - please don't remind me of the practice of a Caribbean national occasionally sitting on a Privy Council case - 4,000 miles from the shores of this fair isle.

How in Heaven's name can it be acceptable to maintain a system in which a Jamaican litigant does not have the right to be present in the place where his appeal is being heard? The requirement of a visa to travel to the UK may not be the most critically important reason for the abolition of appeals to the Privy Council, since, were the UK to remove it, the basis for opposition to the UK Privy Council as Jamaica's final appellate body would remain. But it does illustrate a serious difficulty that arises from maintaining the relationship we now have with the UK Privy Council.

While a Jamaican final appellate body would be good and competent, the Caribbean Court of Justice (CCJ) is, by reason of the deeper pool from which the judges are drawn, so much better and stronger, and would better serve Jamaica's national interests. Moreover, from a pragmatic point of view, Jamaica can ill afford to waste the investment of US$25 million that it has made in the CCJ.

The time to stop outsourcing to foreigners the final appellate function has long past; no less is required by the history of the long struggle of our ancestors for freedom and independence; a history that must make us proud of our heritage and confident of our future.

Jamaica's best-loved national hero, Marcus Garvey, who preached self-reliance, must be kicking at the lid of his coffin at the thought that, 50 years after Independence, we are still trekking to the UK for justice.

Patrick Robinson is an international jurist. Email feedback to columns@gleanerjm.com.