Legal system wants changes

The ceremonial opening of Grand Court on Wednesday was used by many to highlight issues that affect Cayman’s legal system and how justice is administered.

grand court

From left, Consulting Editor of Cayman Islands Law Reports Mr. Colin McKie, Cayman Islands Law Society Secretary Mr. Alasdair Robertson, Justice Alexander Henderson, Chief Justice Anthony Smellie, Justice Charles Quin, QC; Acting Justice Roy Jones. Photo: Carol Winker

Attorney General Samuel Bulgin spoke first, to formally move the motion for the opening of court.

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He said the most serious concern in the wider society is the rising level of serious crime. Because Cayman is small, it is understandable there might be reluctance of witnesses to testify or jurors to convict. Mr. Bulgin said government is considering legislation to provide witness anonymity, trial of certain offences by judge alone and expansion of the jury pool.

He asked for a proper evidence examination facility to enhance forensic capabilities.

‘Those of us who have been around long enough can speak to the recurring problems faced by police investigators, prosecutors and courts in cases where good forensic capabilities would have made a difference,’ he said.

He said Cayman needs more than just DNA testing so exhibits do not have to be sent overseas.

Mr. Bulgin identified another worrying trend – ‘young girls acting as co-conspirators with, and facilitators of, suspected criminals.’ He said there is a clear need to revisit findings of the Crime Study report and follow its recommendations regarding young people at risk.

He accepted that police and prosecutors need to be more diligent and pay greater attention to details.

Police and the public are sometimes unhappy that the Legal Department does not recommend charges in certain cases. But, he stated, it would be wrong to lower the bar in such instances where the evidence does not meet the requisite standard.


Law Society President Charles Jennings, who was off island, had his speech read by Attorney Alasdair Robertson. He said the offshore financial industry is the mainstay of the Cayman Islands economy, ‘and the legal profession, charged as it is with advising on the structuring of the vehicles required by the industry, is at the very forefront in our efforts to maintain the Cayman Islands as a pre-eminent, reputable offshore jurisdiction.’

He asked for fast-tracking of new legislation when required, ‘not only to keep Cayman in the vanguard of the financial world but also to demonstrate to the world how responsive it is as a jurisdiction to the needs of the international community.’

Mr. Jennings said three important pieces of legislation were passed in 2009, but they had been proposed in 2004, 2005 and 2006.

‘When the IMF visited the Cayman Islands in October 2003 they identified issues in our Insurance Law. When they returned in March 2009, the draft bill to address those issues had still not been implemented and while the IMF concluded in their report that ‘substantial progress has been made in the implementation of the 2003 OFC assessment’, they expressly noted ‘some actions remain to be taken in the insurance area’. We hope that this will be very shortly rectified.’

Mr. Jennings reported that 2010 was the sixth year the Law Society said that the introduction of the Legal Practitioners Law is vital for the profession. ‘It is important not just for the profession and the jurisdiction but also for the public of the Islands to have a law that regulates attorneys in a modern way; the current law has not been materially amended since 1972 when there were 35 attorneys. Now there are over 500 admitted attorneys.’

Legal aid

Both Mr. Jennings and Caymanian Bar Association President James Bergstrom expressed disappointment that the profession is not directly represented on the committee recently formed by Government to examine legal aid proposals.

‘We have been given the opportunity, along with any member of the general public, to provide any comments within 10 days,’ Mr. Bergstrom said. ‘However, in the absence of any proposals for us to review, our only position can be to support the recommendations of the Law Reform Commission whose members did considerable research before producing their original report.

‘Ensuring that all defendants receive a fair trial is part of the basic fabric of any modern society. We must ensure that whatever we end up with in Cayman meets international standards and does not result in convictions being subject to challenge and the very serious consequences that could have.’

Mr. Bergstrom called for authorities – including the police commissioner, prison director, and public prosecutor and senior members of the criminal bar – to meet regularly and coordinate the smooth operation of the system.

‘It is especially important that weaknesses in the investigation and prosecution of serious cases be recognised and addressed and that the Judicial Administration is provided with the resources it needs to ensure that cases are disposed of in a timely and just manner,’ Mr. Bergstrom said.

Those resources included a new court building, he added.

‘Our reputation as an international financial centre remains at risk until this is done,’ he said.

In his report, Chief Justice Smellie acknowledged perennial concerns raised in Finance Committee about the increasing costs of legal aid. But, he pointed out, those concerns were never over the equity or fairness of the system or the manner in which legal aid was distributed among the local law firms.

Further, no complaint was ever made with the courts that the people most in need were being denied legal aid. The legal aid system administered through the Courts for over 30 years was found to deliver a high calibre of service and to be good value for money, he said.

Recent criticism of this system led to an initiative by Government to disband it and replace it with a proposed form of privately run system. The Chief Justice said he had expressed his concerns to Government. The upshot was the consultation committee now studying the system.

‘In the meantime, the Legal Aid system is being funded on an ad hoc basis with the understanding that it will continue, unless and until, after that proper process of consultation, the Government decides to change it by legislation and replace it with something else.’

He encouraged people to make their views known.

‘Otherwise, perhaps by default, the public may be at risk of having its tried and proven system of legal aid replaced by something that fails to meet its basic needs or that may be aimed at doing so, but results only in significantly greater costs. For my part, I am obliged to emphasize that what is at stake is nothing less than the ability of the Courts to ensure that justice is done and done in a timely and efficient manner,’ he said.

The Chief Justice said the roster of lawyers doing legal aid work has grown to 54; those willing to do criminal work now totalled ‘an all-time high of between 15 and 20.’

But there is danger of losing some of them because of uncertainties confronting the system.

‘Already, two of the larger law firms – who between them provided five defence lawyers and were responsible for fully a third of the cases – have decided no longer to do legal aid work, at least until the uncertainties have been resolved,’ he reported.

Legal aid for those in need is nothing less than a fundamental human right, the Chief Justice said. ‘While the legal profession has an ethical duty to provide a reasonable amount of pro bono service – as some unsung lawyers do – that may not be expected to substitute for a legally mandated system of legal aid, properly funded by the State to ensure the protection of the fundamental right and the fulfilment of what is a primary obligation of the State.’

He reported that the Financial Services Division of Grand Court commenced 1 November.

‘Here, because of the complexities and large stakes involved in commercial cases, there is always legal representation of the highest calibre. But what this means is that the pressures on the Court to resolve the issues arising in these cases and to do so in a timely fashion is relentless. To a significant degree, this arises from the knowledge that delay can result in serious losses to investors, shareholders, creditors and other stake-holders.’

Delay also results in the loss of reputation of the Islands as a financial services jurisdiction of the first order, he pointed out.

Completion of another courtroom (in the Kirk Building across the street) will enhance the work of the Grand Court in all its divisions, he said.

A new Court Building is still needed, but the project has been suspended because of the worldwide financial crisis that impacted the Islands last year. It had been said in the most recent Throne Speech that the commitment still exists to bring this project to fruition as soon as funding becomes available and the Chief Justice urged Government to fulfil that commitment. ‘There is simply no room for the expansion that is required to meet the demands of the massive increases in the case load.’

The case load for Summary Court in 1999 included 5,020 criminal and traffic cases.

In 2009, there were more than 10,000 traffic cases and more than 1,000 other criminal cases.

In the Grand Court, while 88 cases were disposed of last year, 62 were carried over to this year. Of those 62, 16 date back to 2008 and one to 2007, the Chief Justice reported. ‘What this means is that a significant number of cases were not resolved within the benchmark period of 12 months, which has been maintained in the Grand Court for the past several years.

‘But for lack of courtroom space to try them, an obvious solution would be to increase the number of simultaneous indictment trials from two to at least three. A similar approach was effective in reducing the backlog, when we doubled the number from one to two simultaneous trials several years ago.

‘Without any immediate prospect of dealing with this problem simply by way of case management, I must once more emphasise the need for more space, if the Courts are going to continue to be able to ensure a timely trial for people charged with criminal offences.’

He said many cases go to Grand Court because defendants choose the higher court, although they could be dealt with in Summary Court. This is a matter that can only be addressed by legislative change, he observed.

In Summary Court last year, with three magistrates, 1,452 criminal cases were disposed of, plus traffic cases, of which 9,633 were resolved. In the Youth Court, 103 cases were disposed of.

Over 1,000 criminal cases were pending, along with 1,300 traffic cases and 45 in the Youth Court. The obvious solution would be to operate more courts, except for the lack of space. Chronic delays threaten once again to become inevitable.

There was an encouraging side to the Summary Court results, however, because a significant number of the 1,000 cases apparently carried over have actually been resolved. The Chief Justice detailed programmes in which defendants have pleaded guilty but stay under the supervision of the court until they have completed various counselling courses.

The Drug Rehabilitation Court and other diversionary programmes are designed to reduce the risk of recidivism. Programmes include Domestic Violence Intervention, Anger Management and Healthy Relationships. In addition, there are many people undergoing counselling and other forms of alcohol abuse treatment, as a requirement of the DUI offenders’ initiative.

Present in the court were Acting Governor Donovan Ebanks, Premier McKeeva Bush, Deputy Premier Juliana O’Connor-Connolly, other legislators and government officials, along with attorneys, court staff and guests.

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