Court opening tackles crime

Measures suggested to improve administration of justice

Concerns about an increase in crime could be addressed by more specialised courts, a larger pool of potential jurors, early intervention for at-risk youth and a return to judicial control of legal aid.

These and other proposals were aired as Attorney General Samuel Bulgin formally moved the Grand Court’s opening for 2011 Wednesday in Court 1 as more than 100 people looked on.

“We are all aware of the level of serious crime and the other anti-social behaviour in our society. The public is 
understandably concerned,” Mr. Bulgin said. He reported that the Legal Department received from the police 1,518 files for ruling in 2010, which was up from 1,183 in 2009. The numbers did not include traffic cases.

“The Islands have been subjected to an unprecedented spate of violent crime and everyone must be concerned to see that perpetrators are brought to justice,” said Attorney James Bergstrom, president of the Cayman Bar Association. “There are certainly measures that could still be taken to improve criminal justice and ameliorate social conditions contributing to the rise in violent crime. However, in implementing such measures, we need to ensure that our fundamental rights are not eroded without proper debate or justification.”

Chief Justice Anthony Smellie said draft provisions for the elimination of the right to trial by jury in certain cases “are wisely no longer being pursued for what I believe are very good reasons advised by the judges as well as by the [legal] profession.”

He said the profession’s advice to include all lawfully resident adults as potential jurors would, if adopted, spread the responsibility of jury duty across a wider base. “And it follows, there would be even less to be gained for those with criminal intentions in seeking to intimidate jurors, if they were assured that society at large refuses to be intimidated.”

Legal aid

The private sector attorneys also raised the issue of legal aid.

Mr. Bergstrom said the Law Reform Commission, in a report tabled in 2008, had confirmed that the Judicare Legal Aid System provided high quality of service and good value for money, while recommending some improvements. Cabinet appointed a consultative committee to consider alternative proposals; the committee’s report has not been released.

“On behalf of the profession I would like to re-emphasise the importance of legal aid to the administration of justice and to the reputation of the Islands as a jurisdiction that respects the rule of law and ensures the protection of people’s fundamental rights.”

Other comments were reinforced by Justice Smellie.

“While the Law and Constitution places the responsibility for legal aid and the duty of ensuring fair trials upon the Courts, no budget has been allocated to the Courts to allow them to fulfil these essential functions. Instead, the entire budgetary allocation was again this fiscal year transferred to the Ministry of Finance,” he said.

The Chief Justice agreed that bills submitted by Judicial Administration are being paid, but said he could not agree with the ministry’s proposal that the ministry should be able to override the judiciary’s decisions to grant legal aid. He joined Mr. Bergstrom in urging the executive branch of government to “allow matters to return to normalcy.”

One effect of the concerns over the legal aid system has been a reduction in the number of attorneys willing and able to take on criminal cases, he said.

“As all but a few of the criminal defendants facing serious charges qualify under the law and so must be given legal aid, the defence lawyers are called upon to dedicate themselves to a practice that depends almost entirely on legal aid funding. It is simply unreasonable, therefore, to expect them to do so in a prolonged climate of uncertainty.”

New approaches

Mr. Bulgin commended the work of the Summary Courts under the direction of Chief Magistrate Margaret Ramsay-Hale in emphasising rehabilitation and trying new approaches in the fight against repeat offending.

Justice Smellie detailed those approaches, saying he would seek legislation this year to formalise courts for drunk driving, domestic violence and mental health cases, as was done in 2006 with the Drug Rehabilitation Court Law. He said the magistrates are informally dealing with 134 cases in which defendants are required to undergo some form of supervised treatment while their case is kept open for the court to review. Establishing these courts by law will define the responsibilities of the courts, treatment providers and the defendants themselves, he said.

All speakers addressed administration of justice issues in general along with the work of the civil courts. The Chief Justice’s annual report is traditionally posted on the Judicial and Legal Information web site.

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Grand Court judges in their most formal array include, from left, Justices Andrew Jones, Angus Foster, Charles Quin, Alexander Henderson and Sir Peter Cresswell, with Chief Justice Anthony Smellie in the foreground preparing to inspect the guard of honour. Also present, but not robed, was Justice Karl Harrison. – Photos: Jewel Levy
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5 COMMENTS

  1. Yes expanding the jury pool to include resident expats probably would bring the benefits the CJ suggests.

    But jury service is a function of citizenship – expats do not enjoy the right to vote, and their rights as residents are severely circumscribed.

    Is it fair to impose this obligation on expats – and in effect tax their time – in those circumstances?

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  2. On reading this very informative article, it causes me to seriously wonder how many of Caymans population, both citizens and expatriate residents, realise how far away this entire situation in Cayman is away from the norm.

    Away from the norm of English democracy that is, the Cayman Islands still being a part of the British Commonwealth and a direct territory of the United Kingdom.

    When Chief Justice Smellie speaks of plans that were in place to abort the right to trial by jury, having the legal aid funding under political control and the swift administration of justice being hindered by political interference, he is speaking of a very serious threat to the administration of justice and the fundamental rights of the individual.

    These are both foundations of the English system of democracy and as an individual who has lived in 5 countries now; the Cayman Islands, Jamaica, Canada, the United States and the United Kingdom, I can verify that this system is the foundation of the justice and human rights codes that operate in each and every one of these countries.

    Even in Jamaica, where the conditions are quite different from any of the other countries, this system is still the foundation and when the Jamaican Government abuses the human rights of its citizens, there are repurcussions and consequences.

    This current UDP government, led by the current Premiere, MacKeeva Bush has shown a distinct inclination to abuse and threaten the status quo in Cayman in ways never seen before.

    That they are doing this without more opposition from all concerned parties must mean that; they have the support of a majority, the majority are unaware of the facts or the majority are too scared to speak out.

    Either of these cases is a very poor reflection on the future direction things could go in the Cayman Islands.

    All the people in Cayman had better take a long look at themselves and this situation and heed the message the Chief Justice is sending.

    If one day, the Cayman Islands wakes up to find itself outside the family of democratic nations, each and every single resident of the Cayman Islands will have their fair share of the blame to shoulder.

    And then, who will really want to live in such a Cayman ?

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  3. Freedom of information only works if you know what information to ask for and ask for it. If anything is worth paying for, is the right of the individual to a fair trial, and that involves being judged by a jury of his peers. What needs to be highlighted is the person or persons who drafted such a proposal..

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