November 30, 2021

Peter Polack: The case against a new Cayman Court House

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By Peter Polack

The present congestion and lack of court space has its genesis in several factors the greatest of which was the 2011 removal of the preliminary inquiries in the Summary Court. The brief and low resource preliminary inquiry still used in most of the Caribbean today was able to remove many cases destined for the Grand Court often by a single hearing, sometimes by depositions only (a paper PI), which failed to reach a prima facie benchmark.

The PI removal came after the embarrassing 2010 disclosure by the Cayman Compass that the then Legal Department had 38 firearm cases dismissed.

https://www.caymancompass.com/2010/07/12/gun-crime-difficult-to-prosecute-in-cayman/

The thought process must have been that removal of the PI would prevent case dismissals and further embarrassment of non-performance. The removal of the PI caused the immediate consignment of the most serious criminal cases to a Grand Court unprepared to receive the tidal wave of hundreds of cases requiring vast resources. Also unprepared were the RCIPS which normally had months if not years to prepare their cases before Grand Court hearings, the prosecution and the defence.

Significantly, the proposed 2011 PI removal received no opposition from the very entities complaining today:

1. Responsible officers of the Portfolio of Judicial Affairs
2. The judiciary
3. The prosecution
4. The bar associations
5. The informed public and civic society

A single criminal defense attorney opposed the PI removal.

PI removal questioned by lawyer

The confusing situation led in some cases to Grand Courts remaining idle because neither the police nor the prosecution were prepared or had the resources to move the deluge of cases forward.

Courts idle despite bottleneck of criminal cases

There was no committee review, peer review, stakeholder consultation, research or empirical analysis of the proposed removal of the PI and its multi-faceted effects downstream which lead a few short years later for a demand for nearly $200M for a new court house.

Another factor was the failure of the Portfolio of Legal Affairs to anticipate and provide resources including court time and rooms for the tsunami of criminal disclosure requests that came after a benchmark case critical of prosecution conduct in providing disclosure in 2011. (Note 1 below). The vastly increased workload was sufficient for all parties concerned that even the DPP appointed a former RCIPS inspector as a Director of Disclosure.

At no time after the 2011 removal of the PI (or the disclosure tsunami) was there any graduated attempt to seek significant resources for the onrush of criminal cases from government budgets in the last six years by:

1. The judiciary
2. The Portfolio of Judicial Affairs under Chief Officer Jackie Wilson
3. The prosecution
4. The bar associations

The clamor for a new Court house is in effect a self-fulfilling prophecy created by those who now complain the most.

The recent assertion that the AHAB case lacked court space and resources was a direct result of the massive error by the Portfolio of Judicial Affairs in removing the PI in 2011 and any failure to oppose it. Had the PI remained there would have been an abundance of court space today for the Financial Services Division caseload.

Solutions outside a new $200M court house

1. Reintroduction of the preliminary inquiry. At a minimum the preliminary review of cases by more magistrates will be less costly overall than construction of a new court house and employment of more Grand Court judges. It would also immediately reduce the number of inmates on remand and pressure on HMP Northward.
2. Constitute a review board to review all pending Grand and Summary Court cases with the oldest first which are aged in years.
3. Appoint a Prosecution oversight Commissioner or Board to perform peer review and immediately stop borderline or inherently weak cases from tying up the court system.
4. Decriminalization of archaic or minor offences.
5. Implementation of the recent UK Justice review report on the ODPP.

Notes

1.
GRAND COURT, CRIMINAL DIVISION (Henderson, J.): July 27th, 2011
Criminal Procedure—abuse of process—non-disclosure—unfair prejudice
The accused was charged with murder, contrary to s.181 of the Penal Code (2010 Revision). The Crown disclosed 22 witness statements on which it intended to rely at the preliminary inquiry and which formed the bulk of its case. The accused was committed for trial based on, inter alia, the oral evidence of M, who said that the accused told her he had shot the victim, and the witness statement of P, who said that he recognized the accused as one of the assailants at the time of the shooting. After the preliminary inquiry, the Crown disclosed more witness statements, including 58 which had been in its possession before the preliminary inquiry and could have been disclosed before it started. The undisclosed statements included (i) expert evidence given by a pharmacist on the effect of morphine on a witness’s memory of events and powers of recollection (P was under the influence of morphine before giving his witness statement); (ii) evidence given by the lead investigator who questioned P and engaged in a demonstration to him which may have influenced his recollection of events before giving his witness statement; and (iii) crime scene photographs which may have assisted the defence.
Held: Although the accused’s right to full disclosure prior to the start of the preliminary inquiry had been breached, the proceedings would not be stayed. The court’s task was to assess whether the accused was unfairly prejudiced by the failure to disclose—it would examine the material which should have been disclosed and assess whether its disclosure might have affected the result (Ferguson v. Att. Gen. (Trinidad & Tobago) (2001), 58 W.I.R. 446, applied). In the circumstances of the case it was the evidence of M and P that justified the committal for trial. The undisclosed evidence was not sufficiently cogent to destroy P’s credibility and, in any event, the evidence of M by itself justified a committal for trial; the result would therefore have been the same with or without the undisclosed evidence and the accused had suffered no real prejudice.
Attorneys: Govt. Legal Dept; Polack & Co. for the accused.

2. https://caymannewsservice.com/prosecutors-face-efficiency-review/

Biography

Peter Polack is a graduate of the University of the West Indies and Norman Manley Law School. Whilst at UWI he was co-founder of the Amnesty International campus group and a member of the Union of Democratic Students. He was a former rapporteur of the International Bar Association, Co-Founder and first Treasurer Caymanian Bar Association. He practiced criminal law in the Cayman Islands for 33 years until 2016. Inspired by the book and experiences with youthful offenders the exhibit of his first work as an artist entitled The Confinement Assemblage is on permanent display at HM Prison Northward in the Cayman Islands. In June 2014 he co-founded the Northward Prison Legal Clinic with his daughter Olivia.

Books written by Peter Polack can be purchased at link below:

https://www.amazon.com/Peter-Polack/e/B00BX13VUQ

ADDENDUM:

Bulgin [Attorney General] created the Grand Court congestion in full view of a submissive judiciary, government portfolio and the bar associations who are now bleating like sheep.

We cannot spend $200M to fix his error while there is a shortfall in the government pension fund of hundreds of millions, the higher priority of pressing law enforcement requirements and the need to diversify our economy.

The public will recall that millions have been spent for outside legal counsel because of our incapable Portfolio of Judicial Affairs and hundreds of thousands to extend the retirement age of a judge.

The Portfolio and its various elements is the only government entity to have no oversight and the auditor-general should look into their spending habits while the country goes wanting.

From Peter Polack

EDITOR: Disclaimer: The views and opinions expressed in the above article are those of the author alone and do not necessarily reflect the official policy or position of iNews Cayman, www.ieyenews.com, nor its directors, manager or staff.
analysis performed within this article are only examples.

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