Chief Justice's Speech at the opening of the Grand Court on 5th January 2005
The disruptive events of last September were such as to render this year’s report on the reforms within the Courts little more
than a list of objectives postponed.
But undue emphasis upon the postponed reforms would detract from the real success story of last year — which was the minimal
effect which those events were allowed to have upon the administration of justice.
In this regarded the kind remarks of Mr. Alberga are especially noted.
Well deserved appreciation must be recorded for the dedication of all the staff of the Court Administration and especially those
members of staff who, despite the severe disruption of their own lives and circumstances, turned out to serve the public before the
end of that very same week of the storm.
They and the members of the judiciary who were there, expressed through their dedication, a true sense of appreciation of the
essential nature of the work of the Courts in a time of crisis. They remembered the needs of the very many mothers who obtain
maintenance on a weekly or fortnightly basis through the Courts; the situation of those remanded in custody who must be brought
before the Courts on a weekly basis, so that their circumstances might be enquired into; the needs of many persons who, without
access to the Courts, may not have been able to travel overseas despite the exigencies which then existed. And of course, there
were the inevitable emergency applications for injunctions and the like which are a perennial feature of life at the Courts in a
financial jurisdiction such as ours.
The fact that the Courts became functional again during the very week of the storm, has carried through in the profound sense
that there will be no serious back log of cases as a result, and therefore no delays in the administration of justice, thus
maintaining the standards the public has come to expect and deserve.
The statistical summary which I will give, as usual at the end will I trust, bear this all out.
As to the objectives postponed, it remains necessary, I believe, simply to reaffirm them now.
Computerisation and information technology
The disruption of the work of our local services providers in conjunction with others from the United States and the Channel Islands
and scheduled to continue in October, was a direct result of the storm. Their program will resume very early in the new year. Justice
Henderson will continue along with the Court Administrator, to have oversight of the projects. We very much look forward to the
enhancements to the administration which the new services and in particular which the case management system and Judicial and legal
services web site will bring. This, as we announced last year, is intended to be a shared site between the Courts, the Legislative
Assembly, the Attorney General’s Portfolio and the Government Information Services for the dissemination of all information relating
to the legal and judicial services of the Islands, and for on line access to certain services offered by these institutions.
The Drug Court and other sentencing reforms
A Bill for a Law for the creation of the Drug Court was drafted and presented to an implementation committee some time ago. Their
report on the necessary measures for its implementation was I am told near completion by Sept. of last year. The report is therefore
expected any day now.
A draft Bill containing more general proposed measures for sentencing reform as well as for the codification in one Law of many of
the existing measures, has been presented by the Attorney General and is being considered by the Judiciary. It is hoped that all these
measures, intended to enhance the ability of the Courts to arrive at the most appropriate form of sentence, treatment and rehabilitation,
will soon be realised.
The Children Law
It will be remembered that this Law after initially being passed in 1995, was repealed and reintroduced in a much revamped form in
2003. It carries many and far-reaching changes to the manner in which the important issues relating to children are to be managed by
the Courts and others involved with their custody, care and control.
Training is needed and the decision was taken to commence a program last year for the Justices of the Peace who will have a
distinct role under the Law. It is the intention to return to that program as soon as possible this year.
Rules Committees
The efficiency with which civil cases are being disposed of is , we must assume, at least in part, testament to the continued
suitability of our procedural rules.
Nonetheless, as was announced last year, the standing subcommittee now under the guidance of Madam Justice Levers, will continue
to seek to identify and develop improvements to the Rules and in particular will keep under consideration the question whether we
should seek to adopt wholesale the Woolf Reforms, or further aspects of them.
Summary Court Building
The welcome progress made with the dedication of the site which was noted at commencement last year, was regrettably not to
be significantly advanced by year end. However negotiations for the acquisition of necessary adjoining parcels have borne fruit
and the purchase of one parcel is now completed. The acquisition of the other is still being negotiated.
Statistical overview of case disposal
Summary Court
There were 4321 charges filed in 2004, significantly down from the 7307 filed in 2003. Of these 2983 involved traffic, mainly
ticketing offences, while 1358 involved the more serious types of offences.
Despite the increase in the Court’s jurisdiction, somewhat surprisingly only 279 civil cases were filed in the Summary Court, in 2004 ,
down from 427 in 2003. This must have been due at least in part however to the general decline in activity during the last quarter
of the year.
The Grand Court
54 new indictments were filed in 2004 with 17 carried over from 2003 and 3 from 2002; making a total of 74 indictments coming
before the Court in 2004. 56 indictments were disposed during the year. This means that 18 are carried forward to 2005 one more
than was carried forward at the end of 2003. It also means that the benchmark set for disposal of indictments within 12 months of
filing is still roughly being met.
There remain nonetheless persistent problems with case management as reflected in the fact that a number of cases were adjourned
at short notice or abandoned because of the absence of witnesses. This also carries the unsettling implications for the administration of criminal justice to which the Attorney has alluded.
The judges have written to the Attorney General with suggestions for improvement. We believe the witness subpoena system works best
when the investigating officer remains responsible through out for getting witnesses to court. We have agreed to meet to discuss the
matter including the Commissioner of Police or his designate — a meeting postponed from last year — and to which we look forward as
soon as possible.
On the Civil Side in the Grand Court, there were 493 cases filed last year down significantly from 834 filed in 2003. As this was
the first year that there has ever been such a significant decrease in the number of civil cases, the reasonable assumption is that
that too was at least in part due to the general decline in activity during the last quarter of the year.
The Court of Appeal
18 criminal appeals and 23 civil appeals were heard last year down respectively from 26 and 42 in 2003. Here too the decline was
significantly due to last quarter drops, as a number of appeals could not be taken in the November session because lawyers and the
parties involved were still off Island. In fact that session ran for only a week and a half, instead of the usual three weeks.
Legal Aid
This has been a perennially difficult and vexed issue. From the judiciary’s point of view, it has proven to be a hard cause to
promote. While resources are scarce and the budgetary allocations must be rigidly controlled and justified, there can be no forecasting
with any real precision from one year to the next, how many cases will arise to justify the grant of legal aid or just how involved and
time consuming the cases will become. The best that we can do is to follow the trends and project our budgetary estimates based on the
needs of preceding years. Recognizing the limitations which attend the entire national budgetary process, we also apply strict
requirements to the grant of legal aid, such that only in serious criminal cases are grants routinely made and even then only after
being satisfied that the defendant cannot afford to pay for his own representation. Not surprisingly however, that happens to be so
in the vast majority of criminal cases. With the liberty of the subject at risk, there is simply no alternative but to grant legal aid
in those cases.
Provisions for criminal cases become even more difficult to plan when the exceptionally involved and lengthy fraud or money
laundering cases arises. When legal aid must be granted in such a case, it can by itself, consume a great portion if not all
of an annual budgetary allocation.
With civil cases, the approach taken to granting applications is necessarily even more stringent. Apart from having to show need,
there must first be a clearly meritorious case which would otherwise not come before the courts and so result in a miscarriage of
justice if legal aid is not granted. As the merits must first be demonstrated, it will also be expected that the costs will be
recovered by the aided party and so there is attached a requirement that the attorney assigned must seek to recover costs from the
other side for the benefit of the legal aid fund or else a contribution paid back by the aided party fro any award he or she recovers.
Divorce cases simpliciter will not be aided. It is our experience that even where parties do not have funds immediately
available they could often well bide their time while making some suitable arrangements with their attorney over fees.
However as it stands now, the Law does not exclude such cases from the grant of legal aid. Indeed, on one construction of
the Law which has been advanced, all persons wishing to bring or defend any civil action before the Courts and who can afford a
lawyer, must be legally aided. That construction does not fit with the economic realities and therefore, particularly with divorce
cases, the practice is to grant aid only in an immediate case of need, such as in a case where a child is at risk or there is an
immediate concern for the safety of the applicant from threats of domestic abuse.
Notwithstanding this strict approach to expenditure and to budgeting, the initial vote over the past many years has been routinely
allowed at just about one half the amount submitted. Inevitably therefore, requests for supplementals have had to be submitted with
the result that the subject of legal aid gets debated not once, but twice each year before Finance Committee.
While a request for additional funds has never been ultimately denied, the second request is often naturally met with the scrutiny
that attends any further request for funds, which is that there has been over expenditure. The fact that the initial
allocations had been reduced not then being always at the fore-front of the deliberations.
Such difficulties attending the legal aid system now demonstrate the need to modernize and rationalize our National approach to the
subject. Whereas until now it has been viewed perhaps somewhat as an area of discretionary expenditure, legal aid is no
less essential than any other commitment of Government in a State such as ours which rests firmly upon the rule of law and
committed as we are to the proper administration of justice.
These are views shared by the Attorney General and indeed, I am sure, ultimately by all other members of Government, despite the
need to control expenditure as is so consistently recognized by the debates on the subject over the years.
We therefore welcome the agreement reached with the Attorney General, that we should consider a new approach and we are shortly to
meet to take the matter forward.