In Trinidad and Tobago everybody has a prescription for maladies they have not properly investigated and do not understand. Just pick up the papers or listen to the talk shows and you will know what I am talking about.
That is why I come here year after year and give the same speech and nothing happens. That is why the country has spent upwards of 300 billion dollars in the past five years and we have not yet turned sod on a single new judicial facility.
That is why we have not yet eliminated preliminary inquiries entirely, why we still have jury trials, why we are still incarcerating people for two marijuana cigarettes, why we still have a death penalty we are never likely to effectively implement, why we still have a highest appellate court that one cannot access unless you are very rich or you are charged with murder and someone agrees to represent you for free.
That is why the judiciary has not been able to realise many of its strategic objectives and properly discharge its mandate because we do not yet have real financial autonomy to manage the things that are within our purview. That is why, and I do feel strongly about this, people need to stop blaming us for those aspects of the justice system that are outside our control.
We need a little common sense here. What can I do about low crime detection rates or inadequate evidence or no proper detention facilities or slow forensic analysis or a shortage of attorneys at the criminal bar or prisoners arriving late for court despite our admonitions?
We have some real systemic problems that will not be solved by ‘old talk’ but which require moving beyond conventional wisdom and applying common sense on the basis of the information and evidence we already have or are able to gather. That is why we collect statistics. My reporting to you serves the secondary albeit necessary purpose of accountability but the primary reason for gathering statistics is to form the basis for common sense decision-making.
Before I go into the reporting of our actual statistics let me illustrate by a few examples. We often hear the expression ‘jail ent make to ripe fig.’ That’s conventional wisdom. So collectively we turn a blind eye to harsh and inhumane prison conditions when all the empirical research tells us that there is a positive correlation between a more humane, restorative approach to incarceration and lower rates of recidivism. The only punishment intended by a custodial sentence should be the deprivation of liberty. That’s common sense.
Given the available evidence of the correlation between improved literacy and reduced criminality and recidivism, it is common sense to spend money on education and diversionary programmes which cost less than the $13,000 per month it costs to keep a prisoner before recycling him (and it is usually a him) into society with severely limited prospects for productive employment. How many people in this society even work for as much as $13,000 per month?
Conventional wisdom says ‘lock them up and throw away the key.’ Common sense tells us that we cannot incarcerate our way out of our social problems and crime in general because many studies internationally show a positive correlation between longer sentences and higher rates of recidivism as well as between higher overall rates of incarceration per capita and higher rates of recidivism. The explanations require more time than I have today but we need to be mindful of these realities or as we say colloquially, we will just keep spinning top in mud!
Conventional wisdom says we need more religion. Common sense tells me we need more respect for fundamental human rights because studies do not support the notion that professed adherence to any recognised religion is associated with reduced rates of violent crime.
In fact, there is a considerable body of evidence to the contrary. Again the explanations are complex, but my own observation is that we often use religion to accentuate differences rather than commonalities and ‘otherness’ becomes the justification for intolerance, condemnation, judgment and ultimately, oppression and violence.
Perhaps rather than seeking to impose upon our convert others to our own world-view we should first address the disconnect between what we preach and how we live. Lastly on this issue, as we contemplate constitutional and legislative reform, we must ask ourselves whether we do not practice systemic violence when we endorse laws that punish on the basis of ‘otherness.’
Permit me to turn now to our performance statistics in order to place into context some of the common sense proposals that the judiciary would like to implement:
HIGH COURT (Criminal)
There is good news and there is bad news. Last year, not including matters in which there was a hung jury, the judges of the High Court disposed of 130 Criminal Indictments. This represents a 51% increase over last year and a 32% increase over the six-year average. It is also the highest clearance rate over the past six years and it was achieved despite the fact that one trial has occupied a judge for the entire period and there have been a number of trials lasting for months.
When we consider the time to disposal from filing, 57% of the matters were disposed of within three years, 67% within four years and 86% within five years. For this I must commend the judges for the extraordinary effort that they put in.
The bad news is that there were 190 new indictments filed so we are still falling further behind. Over the past few years the number of persons awaiting trial for murder has risen to over 500. Common sense tells me that the death penalty is not the solution.
Apart from the dubiousness of its value as a deterrent, do we really believe, assuming that a significant fraction of those persons are found guilty, that we will be able to hang several hundred people or that, if we tried, we could stomach it? What are we going to do, schedule one per day, or do it in groups? So what is the real problem and what do we do? The problem is one both of process and of absolute capacity.
On the process side about 15% to 20% of sitting time is lost owing to jury management issues such as illness, exams, family funerals, lateness etc. This does not include having to traipse jurors in and out of the courtroom every time counsel want to make a legal submission. At the end of all that, there is a significant percentage of hung juries, which means we have to start the whole thing over again. What is common sense telling us here?
On a positive note, we are taking steps to address the culture of adjourments and attorney control over proceedings by introducing some discipline into the trial process. I am happy to announce that, after extensive consultation and with the cooperation and assistance of judicial officers, the DPP, Legal Aid, the CPC and the bar the Rules Committee has formulated and approved Criminal Case Management Rules that will facilitate early disclosure and disposal of preliminary issues, impose stricter time lines and impose a positive obligation on all parties, including the judicial officers to assist in progressing cases in accordance with the overriding objective of dealing with cases justly and expeditiously. Training is to commence shortly and we expect to be up and running in early 2016.
After a successful experiment with Goodyear Hearings, including an unusual foray by the Chief Justice on the trial bench, I have now issued a practice direction to facilitate more widespread adoption of this procedure.
Goodyear Hearings, or Maximum Sentence Indications as the local version is now called, are a procedure whereby, at the request of the accused who has committed an offence, the Court will give a binding indication of the maximum sentence he/she is likely to receive in the event of a guilty plea on the basis of factual admissions advanced voluntarily by the accused and agreed by the prosecution. Significantly, the plea must be made within a specified time otherwise the guarantee is lost.
We anticipate that persons who have been in remand for periods approaching their likely sentence will utilize this procedure. Already considerable interest has been generated. When utilised in conjunction with the revised Plea Bargaining legislation, we anticipate a significant reduction in the backlog.
The reality is that for many people on remand fair and sustainable prosecutions for the offences charged may no longer be possible because witnesses may have died or are no longer available or the quality of evidence has deteriorated over time or for other good reason.
Common sense suggests, as I have been advocating for some time, that a comprehensive exercise be undertaken to review all matters beyond a certain age, discontinue those prosecutions that are no longer sustainable and utilize the plea bargaining provisions for others, perhaps for pleas to lesser offences where it is justifiable in law based on the state of the evidence. But we can’t bring the cases, that is for the DPP and the defence to work out.
On the capacity side, we simply do not have enough prosecutors and defence attorneys to deal with the matters in the system. My attention was recently drawn to a television programme in which an attorney was complaining about delays in the court and the fact that he had over 100 clients awaiting trial for murder. Well let’s apply a bit of common sense. Would more judges or courts solve that?
Even if we had a 100 courtrooms and judges waiting to try them, if he is engaged in one trial, then the other 106 would have to wait until he got around to them. Anybody who keeps a 100 matters becomes a part of the problem rather than a part of the solution. At the same time we hear that it is difficult to make a living at the criminal bar.
The work has to be shared around and people have to be given the opportunity to develop in criminal law. Now do we understand why I have been clamouring for a Public Defenders office? If we attract more lawyers to a criminal practice, then obviously, although we know that the country is facing difficult economic times there must be a commitment to providing the long promised new physical plant as a matter of high priority?
Now do we understand the need for real financial autonomy so that those who live with and understand the problems can set the priorities? After all, it’s just common sense!
HIGH COURT (Civil)
New filings were down from 4857 in 2013-2014 to 4716 last year. This is below the six-year average of 5089 and indicative of a steady downward trend over the past four years. I do not know whether this is due to a perception that the Courts are not as efficient in disposing of matters, increased utilisation of alternative dispute resolution mechanisms or other factors. We need to research that. In any event, what is clear is that disposals are down both in absolute terms (from 4407 to 3905) as is the disposal to filing ratio, which has declined from 1.0 in 2011-2012 to 0.9 in 2013-2014 and now stands at 0.8. It is nevertheless of some comfort to report that of the matters disposed of during the last law term 84% were disposed of within two years of filing. That continues to be a remarkable achievement for which the judges must be commended. I must also thank the Masters whose efforts often go unnoticed and unheralded.
Our ability to improve disposal rates is also being hampered by irresponsible and excessive resort to procedural appeals by some members of the bar and I intend to pursue consultation with the Law Association with a view to possible amendment of the CPR to discourage unnecessary appeals.
Again I have been cautioning for some time that we are at saturation point and burnout is beginning to affect the judges. The deployment of alternative dispute resolution mechanisms is an essential part of any effective justice system. We do not exist to do trials, we exist to provide a dispute resolution service in which a trial is only one option and one of last resort.
In the past, I have promised the roll out of ADR systems including mediation and settlement conferencing as an integral part of our suite of services. Unfortunately we have not been able to meet the September 2015 deadline but significant progress has ben
made. We should be in a position to evaluate responses to the call for expressions of interest from service providers within a couple of month or so and I am determined to have implementation effected within the upcoming term.
MATRIMONIAL
New divorces filed are holding steady at 2814 in comparison to 2824 the previous year. Determinations however are up to 2253 from 1963. I am not sure that I can report that as good news but at least we are becoming more efficient at it.
PROBATE
There was a rebound in new filings from 3052 to 3633 which puts us above the 6 year average of 3463. We managed to achieve a clearance ratio during the year of 0.86 for large estates and 0.99 for small estates.
MAGISTRACY
Here the news is not so good. While new filings are down from 125,166 to 115,536 (the continuation of a trend over the past three years), so are disposals from 83,822 to 77,816. More significantly, the disposal to filings ratio is stuck at 0.67.
This is an area where some common sense is required. Traffic matters accounted for 56,744 of the new filings. I have been saying it over and over again. Magistrates do not need to be dealing with minor traffic matters like tickets. They should be doing case management and trials. The technology exists for smart licences and immediate electronic citation.
Fines should be payable online and in default one should not be able to register a new vehicle or renew a driver’s licence. An unsuccessful court challenge should be met with an automatic doubling or tripling of the fine and the introduction of a points system with automatic disqualification beyond a fixed threshold and mandatory driver education before renewal should be effective at behaviour modification.
We are already doing what we can in respect of process reform by the introduction of Criminal Procedure Rules, and intensive case management training in collaboration with the bar is planned to change the culture of adjournments. There should be no such thing as putting a matter for mention.
No adjournment should ever take place in any court without clear directions and understanding of what the respective parties are responsible for doing in the meantime and no court hearing should be scheduled unless specific steps are to be taken towards the disposal of the matter.
Additionally, the roll out of hearings by video link, which has been stalled for so long needs to be started. This will reduce the cost and risk of prisoner transport as well as the problem of late arrival of prisoners to court.
Having said all of that I must thank those magistrates who have once again put in a herculean effort under very difficult conditions. While it is always risky to single out any particular district because there are hard working magistrates everywhere, I think we need to go and do a study of Point Fortin where a disposal to filing rate of 98% was achieved!