Summary Court facing backlog

The Summary Court of the Cayman Islands has a backlog of more than 1,000 cases left over from 2013. 

The 1,230 Summary Court cases carried forward from last year have the knock-on effect of cases now being scheduled to be heard at the end of this year.  

Court officials say the reason for the backlog can be summed up in one phrase, “Not enough,” – not enough court rooms, not enough magistrates, not enough funds for legal aid, and not enough defense attorneys or crown prosecutors. 

The situation was already apparent last month when, at the opening of Grand Court, Chief Justice Anthony Smellie voiced concern that “trial dates in the Summary Court are now being set for as late as August, 2014.” 

Little more than a month later, as of Feb. 25, September and October are well booked, at least nine trials are scheduled for November, and one has already been set for December. 

The Chief Justice pointed out that while 1,579 new criminal charges were laid in the Summary Court in 2013, 1,230 were carried over into this year. Such a state of affairs, he indicated, is not consistent with the notion of timely and effective justice. 

The Chief Justice explained that, of those 1,230 cases, 159 are under review in the court’s various treatment programs. In Anti-Domestic Violence program, participants report to court once per month on their progress. An informal Mental Health Court meets monthly and defendants are monitored to see if they have been complying with treatment. People who plead guilty to driving under the influence of alcohol have the option of attending counseling sessions before they are sentenced.  

The Drug Rehabilitation Court works with offenders who seldom reach their goals of abstinence, employment and stable living conditions in less than 18 months. 

Subtracting the number of cases under review, the Summary Court still has more than 1,000 cases to deal with from last year before starting this year’s business. The Chief Justice described the number of cases carried over as “fully a year’s case load.” 

Court Administrator Kevin MacCormac spoke frankly about the problem in a recent interview, elaborating on some of the Chief Justice’s remarks and adding his own insights. 

Court rooms 

Over the years, the number of court rooms has expanded from the original two when the Law Courts Building opened in 1974 to six in recent years, mostly through leasing space in Kirk House across the street. Earlier this month, eight Grand Court judges and four Summary Court magistrates had matters to deal with, so a planned Court 7 was opened before renovations were in place. 

Floor plans for that courtroom, in the former retail store Winners Circle on the ground floor of Kirk House, have been approved but the necessary structural work has not yet been done. 

Mr. MacCormac pointed out that the George Town Town Hall, which had been used until Hurricane Ivan in 2004, was again being made available, with microphones improving its usefulness. He also noted that the Chief Justice’s chambers have been moved to Kirk House, where more space was available for a hearing room. “It’s not meant for open court, but it has been used” that way, he said. 

Court rooms should have easy public access, he indicated, so that any member of the public would not be prevented from attending. At the same time, security is a consideration. The safety of all parties, including witnesses and staff, should be ensured. Proper toilet facilities are a consideration, as are adequate parking spaces for vehicles.  

“But the most important consideration is having an environment appropriate to the proceedings of the court,” Mr. MacCormac emphasized. 

“We have explored other buildings, but we haven’t found anything set up for our needs, or what we could afford,” he said. 

Magistrates 

Three full-time magistrates deal with all of the Summary Courts, including Traffic Court, some civil suits and maintenance matters. Former magistrate Grace Donalds and attorney Eileen Nervik serve frequently as acting magistrates. 

The Chief Justice announced the appointment of three supernumerary magistrates. Just this week attorney Angelyn Hernandez, attorney Phillipa McFarlane Ebanks and former senior crown counsel Adam Roberts took their oath of office and began training. 

The Chief Justice said their appointments “will help ensure the availability of judicial support whenever the need arises in the Summary Court and will allow greater flexibility for a more specialised approach to dealing with cases.” 

Attorneys and prosecutors 

In his address at the court opening, Attorney General Samuel Bulgin announced that government had approved the hiring of an additional crown counsel. Further, with a re-arrangement of portfolios within the office of the Director of Public Prosecutions, two crown counsel will be made available “for a project to tackle the backlog in some of these areas.”  

On the defense side, there are approximately 12 attorneys who are in criminal court on a regular basis. Almost two dozen others appear in criminal cases occasionally, with the bulk of their practice devoted to civil or family law. An informal count shows 35 attorneys doing criminal cases, although more than 650 names are on the roll of attorneys licensed to practice in Cayman as of this week. 

No one directly addressed the reason for the low number of defense attorneys. However, the Chief Justice may have given a hint when he spoke about legal aid. 

He said it was expected that legal aid bills this year “will be paid more promptly. This, I am sure, will be welcome news for those practitioners who provide the crucially important service of legal aid representation, especially in the Family, Constitutional and Criminal Law jurisdiction of the courts.”  

Legal aid 

The Chief Justice elaborated on some of the problems involving legal aid. “I am obliged to mention the growing concerns of the magistrates, particularly over the lack of legal representation for persons charged with what the law regards as the less serious offences – those which are not expressly provided for under the Legal Aid Law as it stands,” he said. 

“The consequence is that many persons charged with offenses that could result in imprisonment are not aided. This presents great difficulty for the Summary Courts, as defendants charged with these less serious offences are awakening to the Constitutional protections which mandate that as an aspect of the right to a fair trial, legal representation for those who cannot afford to pay shall be provided at public expense through an established public legal aid scheme as prescribed by Law,” the Chief Justice continued. 

“It goes without saying that the existing allocation for legal aid would be grossly insufficient to extend cover for all such offenses as well. Nonetheless, I am bound to express the Judiciary’s concern about the fairness and perhaps even the constitutionality of a system that fails to provide assistance to persons in need and who are charged with any offense that could result in loss of liberty.” 

He noted that the number of applications for legal aid in criminal cases had risen from 276 in 2012 to 370 in 2013, an increase of 34 percent. (Applications in civil cases went from 281 to 313, an increase of 12 percent.) 

Mr. MacCormac said the legal aid budget has needed a supplementary vote every year for the past five or six years. 

He noted that some other jurisdictions deal with legal representation by the appointment of a duty solicitor to give preliminary advice. This could be enough to help a defendant decide whether to plead guilty or not guilty, he explained. 

Creative solutions 

Mr. MacCormac also cited possible approaches other than trials, including exploring whether
some cases brought to court could be dealt with by mediation between parties. 

Another approach might be cautioning, used in the U.K. with defendants who have never been in trouble before and are accused of a minor offence. The caution makes them realize the risk they run by behaving badly, he said. “But we mustn’t lose sight of the effect on the victim, as well as the offender. We need to make sure we balance the needs of the victim with the needs of the offender,” Mr. MacCormac said. One cause of the backlog is the delay in dealing with them. The Chief Justice urged “more effective case management on the part of the police, the prosecution, the defense and even the courts.” 

Justice-Smellie

Chief Justice Anthony Smellie at the opening of Grand Court in January 2014. – PHOTO: CHRIS COURT

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