CELEBRATING THE PAST, EMBRACING THE FUTURE
A presentation to mark the 50th Anniversary of the establishment of the Eastern Caribbean Supreme Court made at the Sandals Grande Hotel, Antigua, on Monday 27 February 2017
Part 2 of 3 parts
The Practice of Law
In the decade of the 1960s, we West Indians were just beginning to emerge from the pre-constitution paradigm of the practice of law. That paradigm rested on the principle that the courts do not have the jurisdiction to question the validity of an Act of Parliament. Only the House of Assembly could amend or set aside a statute. A judge’s role was to interpret it and apply it. Then, commencing in the year 1961, Jamaica, Trinidad and Barbados adopted independence Constitutions which proclaimed the supremacy of the Constitution. It took the 1970 trade’s union case of Collymore v A-G from Trinidad to establish that parliament’s laws are subject to the Constitution of a Commonwealth Caribbean Country, and the role of the Supreme Court is to be the guardian of the Constitution. It took the 1977 gun court case of Hinds v R to finally put to rest any lingering doubts caused by any real or perceived limitations of the Collymore judgment on the question of the supremacy of Commonwealth Caribbean Constitutions.
How far have we moved since those early days! Today, it is routinely and universally accepted that the Supreme Court can amend or set aside a statute, if it finds that the words of the statute are in conflict with a provision of the Constitution. Constitutional and administrative law issues now take up large chunks of court time. And, with our societies becoming ever more litigious, our courts are being called on to deal with more complex and difficult issues than our predecessors, engaged as they were in running-down cases and larceny prosecutions, could ever have imagined.
When I began to practise, society was much less litigious than it is today. For most of our citizens the law lay in the background of people’s lives and society. Once we paid our debts, stayed out of jail, and kept as far from the law courts as possible, we would be all right. Now, as Canadian Chief Justice Beverley McLachlin has put it, law permeates every facet of our society. Criminal Codes have amplified the old offences, and created a host of new ones, from drugs trafficking to money laundering. Since the negligence principle was defined in Donoghue v Stevenson, the law of tort has broadened enormously. The law of contract has expanded to impose liability for non-economic, intangible losses. The regulatory state has brought a host of rules, regulations and statutory tribunals into every aspect of economic and social life, all requiring supervision by the courts. Since the 1970s, our courts have been called on to recognise and protect the basic liberties inherent in each individual: freedom of speech; freedom of religion; freedom of movement; and freedom from discrimination, among others. Constitutional and human rights cases now play a larger role in using court time than ever before.
The result of this rising tide of litigation is that courts now find themselves more and more involved in issues that touch and shape our responsibilities to each other. More and more, Judges matter; and more and more, as McLachlin CJ notes, Judges are scrutinised and criticised. Add to that the technological revolution, and the demographic and social pressures caused by our increasingly mobile and ethnically and religiously diverse populations, and the stresses on our societies that our courts are increasingly being called on to deal with, continue to grow.
If our judiciary is to maintain the respect of our societies, the traditional judicial qualities of impartiality, independence and integrity will need to be maintained and strengthened, and new practices will have to be adopted. The modern West Indian Judge will increasingly be called on to adapt old principles to modern realities.
Judicial impartiality will increasingly be challenged by the modern ethic of corporate market-place efficiency. Judges will be called on to ‘practise management reforms’; show ‘more effective use of resources’; be ‘more responsive to the needs of society’; and, more accountable for their actions. We will be asked about our ‘performance results’ and be subject to ‘program-based budgeting systems’, all imposing a greater risk of political direction.
Seventeen years ago, in the first Special Sitting of the Court of Appeal to receive an address by a Chief Justice marking the opening of the new law year, Sir Dennis Byron introduced us to his judicial reform programme. This included,
• the start of the backlog reduction exercise;
• the publishing of the court’s website;
• the shortly to be introduced new Civil Procedure Rules;
• the introduction of case management, whereby the progress of cases would be transformed from lawyer-driven to a court-driven process.
• Prominent in this address was the news that the court had hired its first ‘Information Technology Manager’.
In his address two years later, Sir Dennis described the beginning of the main features of our present-day court system. These included,
• the wiring of our courthouses, some dating back to the 18th Century, to facilitate the use of computers by the court and lawyers;
• the air-conditioning and general modernising of our courtrooms;
• the introduction of a new selection process for the appointment of our Judges by the Judicial and Legal Services Commission based on principles of transparency, competition and merit;
• CPR 2000 had come into effect, replacing the old Rules of the Supreme Court;
• the backlog reduction programme had disposed of a vast number of ancient cases, and the backlog was considerably reduced;
• the case management software package, JEMS, had been introduced into the ECSC headquarters and was being deployed throughout all the courts of the region;
• court managed mediation was about to be introduced in the courts of the region to assist in the disposal of cases which were suitable for this process;
• audio recording had been introduced in St Lucia and Dominica and was due to be introduced in all the islands, as Computer Aided Transcription Reporters from around the region began to be trained at the College in Tortola;
• the programme to regionalise the magistracy had begun;
• formal legal aid programmes were being promoted in all the islands;
• the Judicial Education Institute housed at the ECSC headquarters in St Lucia had become increasingly visible and productive through a number of programmes held in the previous law year. There had for the first time been workshops for Judges, Magistrates and Registrars on such varied matters as money laundering; telecommunications law; sentencing; orientation for new Judges, masters and magistrates; and
• training of mediators throughout the region was in progress.
Since then, further improvements and innovations have been introduced by subsequent Chief Justices. These include,
• An enormous growth in personnel. While the ECSC headquarters in the year 2000 employed a total of 6 professional staff, being 4 Court of Appeal Judges, a Chief Registrar and a Librarian, assisted by 7 support staff, now there are 26 professional staff. There are now 6, instead of 4, Court of Appeal Judges, and 20, instead of 2, professionals. One third of the professionals at headquarters are lawyers, including 5 Judicial Research Assistants. The number of support staff has grown from 7 to 19;
• A professional statistician now collects and publishes statistics on the work of all the courts of the sub-region;
• All courts were supplied with computers, scanners, printers and ancillary equipment, including the appropriate software to enable office automation facilities and tools for the most modern techniques in case management;
• Every Judge and Registrar was supplied with a laptop computer with the capacity for linkage to the court office network;
• The increased administrative capacity has enabled headquarters to provide technical assistance to all court offices throughout the sub-region. The growth in human and technical resources over the past eighteen years has necessarily impacted the budget, which tripled in size from EC$5 to over $18 million;
• The research capabilities of Judges and Registrars were strengthened through the use of QUICKLAW and LEXIX-NEXIS;
• The court website began to publish all judgments given by our courts, newsletters, and other information on the court system, in a cost-efficient manner and free to users;
• Practice Directions, copies of which are available on the court website, began to be published, playing a vital role in clarifying various rules and enhancing the more accurate use of procedure;
• It became standard procedure for court lists to be automatically generated by JEMS and circulated to all lawyers by email;
• Court filings by email, pursuant to the two relevant Practice Directions, has now started;
• New Probate Rules have been drafted and circulated to the Bar Associations for comments, which when published will harmonize the procedure across the jurisdiction;
• Additional specialist divisions of the court, with their own Rules and Practice Directions, have been created, that is, a Criminal Division, a Commercial Division, and soon to be a Family Division, each with power to manage cases and with a view to more efficiently handling the increasing volume of work;
• All-year criminal sittings, running in tandem with the civil sittings, have been introduced in all but the smaller States and Territories of the OECS, resulting in a reduction of the backlog in criminal cases which had plagued our criminal justice system for decades;
• Court-administered mediation on a voluntary basis in civil disputes was now widespread throughout the sub-region; and, we are now considering making mediation mandatory in all civil cases, and introducing mediation in relation to less serious criminal cases;
• Video Link facilities were installed at the High Courts and the ECSC Headquarters during 2010-2011; the facility has been in operation and facilitates case management, Chamber Hearings, and several Court of Appeal sittings between headquarters and the member States since then, with considerable savings in the expense of travelling, and a speeding up of hearings which can now be disposed of outside of regularly scheduled sittings;
• With the enormous increase of litigation over the past 50 years, the demand for appellate services has increased to the extent that the Court of Appeal now routinely holds two separate sittings simultaneously;
• A list of trained and court-approved transcriptionists in most jurisdictions has been circulated to lawyers for their use; and transcripts of the day’s evidence are now prepared in as little as 24 hours.
• The hearing of evidence by video-link in criminal cases in St Lucia and St Vincent is now governed by a Practice Direction;
• Last year, 2016, saw Antigua and Barbuda use the Evidence (Special Provisions) Act 2009. For the first time a live video feed from a witness outside the State was used in a criminal trial in the High Court. As the use of this technology spreads, all of our member States and Territories will in due course adopt this procedure so as to enjoy this improved level of efficiency and cost saving. The advantages to our people are that,
• There will be a tremendous saving in costs, and a more expeditious resolution of matters in court;
• Non-essential witnesses, such as experts and others who are not resident in the State, will not be required to spend time and money travelling to and from court;
• Police officers will be freed up for front-line duties;
• The number of adjournments will be reduced, enabling the swifter disposal of cases;
• Evidence can be taken from children and vulnerable witnesses in a manner that is safe and non-threatening; and
• Witnesses in correctional facilities will no longer be required to be transported to the court at great cost and increased security risk.
[To be continued]