Bill of Rights includes right to trial ‘within a reasonable time’
Citizens’ rights to a fair and timely trial will be at risk if judges and magistrates don’t have enough courtrooms, Chief Justice Anthony Smellie said during the opening of Grand Court on Wednesday.
He did not use the phrase “Bill of Rights” when he said the Judicial Administration would again raise the need for a new court house with the executive and legislative branches of government. It was Attorney General Samuel Bulgin who pointed out the Bill of Rights in Cayman’s 2009 Constitution is scheduled to come into effect in November this year.
Article 7 states: “Everyone has the right to a fair and public hearing in the determination of his or her legal rights and obligations by an independent and impartial court within a reasonable time.” The term “reasonable time” is not defined.
The chief justice said the benchmark for Grand Court criminal matters is to have them disposed of within 180 days. Last year, the average was 285 days. The average time to dispose of criminal matters in Summary Court was 298 days.
There are three magistrates – and a need for a fourth – plus seven Grand Court judges, but only six courtrooms, Mr. Smellie said. When the Court of Appeal is in session there can be a need for as many as 11 courtrooms.
He said it could not be forgotten that “what is at risk if the administration of justice falters, is the right of the citizen to a fair and timely trial and the right of all persons who come before the courts to have accurate and cost-effective determinations of their disputes.
“In the absence of the assurance of those rights, Cayman would soon lose its reputation as a fine place in which to live and in which to conduct business,” the chief justice said.
The potential impact of the Bill of Rights was referred to in Grand Court just last week by Justice Alexander Henderson. A defendant was scheduled for trial on 16 January, but attorney Ben Tonner said that five trials had been scheduled for that week, but only two could be dealt with. Since his client was on bail, the suggestion was that his trial, for an alleged 2009 offence, could be scheduled for a later date. “It is not at our request,” Mr. Tonner emphasised; the court listing officer had asked him to come in.
Justice Henderson said once the new Bill of Rights comes into effect, it will be important to put all such information on record. The Bill of Rights, he pointed out, “includes right to trial within a reasonable time.”
The need for additional court facilities in George Town has been known for years. But for economic reasons, those plans have not been acted upon.
Nevertheless, Chief Justice Smellie said case loads have continued to increase and place an ever-growing burden on staff and facilities.
“Unlike in other areas, the investment in plant to keep pace with the exponential increase in government business has not taken place with the court facilities,” the chief justice said. “This is notwithstanding the fact that revenue generated from the commercial side of court business has continued to contribute significantly toward offsetting the costs of providing the services,” he said.
In spite of lack of space, some improvements can be made, he said. One is “a more rigorous approach to case management … To that end I will be seeking the appointment of a case progression manager for the Summary Court and the Grand Court criminal divisions.”
Mr. Smellie detailed the volume of criminal cases before the courts. Last year, 1,338 new cases were filed in the Summary Courts while 1,276 were disposed of, including some carried over from 2010. This was a disposal rate of 95 per cent. In Grand Court, the disposal rate was 79 per cent, with 114 indictments filed, 91 disposed of and 88 carried forward to this year.
The number of civil, financial and family cases before the courts was not immediately available, but the work load is such that three Grand Court judges deal exclusively with cases in the Financial Services Division.
The need for more court space was raised as early as 1999. At the court opening in 2009, the chief justice announced an intention to break ground for a new court house in July. Kurt Tibbetts, then the Leader of Government Business, was asked about the time line for the project. “I do appreciate the chief justice’s prodding,” he said. “But there are many unknowns in the world today.”
This week, Mr. Smellie acknowledged, “The new court house project was in the advanced stages of its design when it was shelved because of the financial crisis of 2009. The need for it is more urgent and pressing than ever,” he said.
Attorneys have regularly endorsed the call for expanded court facilities. This year, it was Dale Crowley, president of the Caymanian Bar Association, who called for a re-examination of previously approved plans and development of an acceptable solution as courts and case loads continue to expand.