Our new Chief Justice Designate, Marston Gibson, has indicated that he proposes to speed up the process of criminal justice in the courts of Barbados when he takes office in the New Year.
The new CJ’s experience is largely in civil law, not criminal law. However, he has practiced in the United States, which still espouses the death penalty and he must have views on this emotive subject. One has to wonder which side he takes.Whatever his views are and whatever our individual views are however, we cannot but welcome the acceleration of the delivery of justice.
However, the CJ has promised to accelerate only one aspect of law. But what about civil law, on which he is an authority? It is all very well to deliver justice to persons criminally charged, but at what stage does the CJ think that the courts themselves should be penalized for the delays in civil justice?
The civil courts of Barbados are in severe crisis, with un-prosecuted cases, most of which were likely filed as nuisance actions in the first place, for which the parties concerned regularly have to pull their pockets to pay lawyer’s fees, due to the inaction and sloth of the civil courts. The effect of this has been to remove from the civil courts the claim to be halls and justice and to turn them into chambers of torture. No longer can justice be seen to be even handed and blindfolded and those scales in the statue ought now to be depicted as groaning on one side under the weight of the money that one or other party can put in, in order to stay the course. Meanwhile the sword, now held upright, needs to be repositioned so that it points threateningly towards the empty side of the scale.
There are so many cases before the civil courts that have actually started trial and been adjourned, doomed to remain part-heard, for years, while costs continue to mount and justice continues to be denied. It is a scandal. We urge the new CJ to tell us what he proposes to do about it, instead of appearing to take what is a soft option public-opinion-wise, of deflecting interest on to the criminal courts with the implied lure of bringing in exhaustion of appeals effectively within the time-frame of Pratt and Morgan. That might be seen as just another version of the David Simmons undertaking to enforce the death penalty. And we want and expect FAR MORE.
What does the new CJ intend to do about a totally archaic and completely inefficient Registry, where files are lost, correspondence on dates for trial set at motion days not sent, where certain council seem to be able to unilaterally delay hearings and where courtesy to the general public is completely disregarded?
What does the new CJ propose to do about a bench of largely incompetent judges? Judges that take years to render decisions and whose appointment was due, not to their competence, but to the nepotism of the new CJ’s incompetent predecessor, Sir David Simmons, at whose door and that if his wife, the former Registrar and later Justice of Appeal, the blame must be firmly laid? Will the new CJ, invoking the constitution, take the necessary action of having these judges dismissed? Or will we simply have to wait for them to reach, along with the new CJ, retirement age and hope and pray that they arr replaced by competent jurists?
Here is a case in point of judicial and registry and judicial incompetence that occurred in the last weeks. We name and shame the judge in this case, Dr. The Hon. Madam Justice Sonia Richards, a person who ought never to have been on the bench in the first place. A week ago, a case was on the court list for hearing before Justice Richards. The judge was there and, for once, did not have to adjourn because the Registry (in a departure from its usual habit) HAD provided her the file, and all defendants’ counsel were there – indeed, the only absentee was plaintiff’s counsel and a call to the Registry established why that was. You see, the Registry had decided to reschedule and, in these days of fax and e-mail, had omitted to inform anyone but plaintiff’s counsel – even omitted to tell the judge. The Registry advised that the matter had been set down for this week and this time everyone assembled including the judge, the file and plaintiff’s counsel. However, the matter was not on the hearing list and even though she had no other cases to try, had been informed by the Registry that that was the date of the case, Dr. The Hon. Madam Justice Sonia Richards refused to hear the case on the basis that it was not on the list.
And how did this expense everyone? Lets us say there were four or five senior counsel/Queens Council each charging at $1,200 per hour, plus their junior associates charging at $500 per hour. With their preparation and loss of income, the minimum time everyone would charge for would be 5 hours. Also, there may be charges or losses of income that plaintiff or defendant must sustain on an hourly/daily/weekly/monthly/yearly basis and we cannot set a figure on that. What we can say is that on the first instance the Registry cost the case conservatively $50,000. On the second instance, Dr. The Hon. Madam Justice Sonia Richards cost the case conservatively $50,000. But hey, that money isn’t coming out of the pocket of anyone at the Registry, nor is it coming out of the pocket of Sonia Richards or her fellow incompetents on the bench. Instead, it is coming out of the pockets of poor Bajans who have gone to our courts seeking redress for civil wrongs. A large corporation may be able to afford that kind of money, but not a small business OR THE MAN IN THE STREET.
And this is but one of MANY instances of the same nature. And this has to be seen as the first priority of the new CJ. Not to the concealment himself and his administration behind the public relations stunt of the death penalty in imitation of his predecessor, David Simmons.
It is now taking as long as 10 years in some cases, from the time of filing of a civil action to the decision at first instance. Forget about appeals. These will take another 5 years if they go all the way. So, with appeals, civil actions are now looking, in some cases, at 15 years from filing to exhaustion of all appeals. Meanwhile, a criminal case, from charge to exhaustion of appeals, is looking at a significantly lesser time period.
Civil cases are decided by Barbados’ largely incompetent bench that is our “gift” from our worst-ever Chief Justice, David Simmons and this bench seems, in the words of top jurist, Sleepy Smith, “to think it has a constitutional right to be stupid”. Criminal cases are tried by a Jury, so the decision is much faster, no matter how long the case. Once both are tried, any appeals go before the very competent (for the most part) Justices of Appeal, where matters are greatly accelerated and far more competently handled.
While it can be rightly argued that criminal cases delayed, cause severe hardship and loss of reputation to the accused and so deserve to be determined as quickly as possible, this is no less true of civil cases where the lives and well-being of entire families are prejudiced and put at risk by delay, a delay that serves only the person with the money to weather it, and not the person with right on their side.
But the new CJ knows this full well from his own practice and experience, so maybe he expects us to take his intention to radically speed up the civil process as read and, because of his lack of personal experience in criminal law, to reassure Bajans on his intent to address that aspect of law as well.
As he prepares to take office in a few months, the new CJ’s reassurances that he intends to radically address and clean up the civil courts would be extremely comforting to poor people who have sacrificed so much and placed their hopes and expectations in a justice system in Barbados that, currently, DOES NOT EXIST.
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