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.”
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.”
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.