October 21, 2020

The Editor Speaks: Backlog

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Colin Wilsonweb2One of our stories posted today is titled “Jamaica: New court for old cases – Chief Justice takes step to clear up backlog”.

Jamaica’s Chief Justice Zaila McCalla has announced “drastic measures to reduce the huge backlog of cases which has been plaguing the justice system for decades”.

The article says “cases on the court list for more than five years to be sent to a special court. The cases will be mentioned on Wednesdays between 10 a.m. and 1 p.m., and the chief justice stressed that they must remain on the list until they are disposed of or are ready for trial.”

“McCalla said the old cases must get priority on the trial list, and two judges will be assigned to monitor the mention list.”

The backlog of cases in our own Cayman courts appears to be just as bad.

Going back to 2014 Chief Justice Anthony Smellie announced there were government proposals for more court space to deal with “an ever increasing case load and backlog”.

did not specify the locations for these new courts of justice, but confirmed two alternatives will be presented to Cabinet ‘shortly’. “Hopefully, next year I will be able to say we are about to realize a new court house,” he said.

2015 passed and everything is the same and the backlog appears to be just the same or even worse.

The Cayman Islands in 2014 had a backlog of 1,230 cases left over from 2013.

Court officials have been reported as saying the reason for the backlog is not enough court rooms, not enough magistrates, not enough funds for legal aid, and not enough defense attorneys or crown prosecutors.

Under the “ No. 5/2015 CAYMAN ISLANDS SUMMARY COURT CRIMINAL CASE MANAGEMENT” it states:

“1.1 The purpose of this Practice Direction is to establish a procedure for case management in criminal proceedings in the Summary Court to reduce delays and improve efficiency.”
“3.1 The overriding objective of this Practice Direction is that criminal cases be dealt with justly and expeditiously.”
“3.2 Dealing with a case in furtherance of the overriding objective includes-
(v) Dealing with the case efficiently and expeditiously;”
“6. The duty of the Court
6.1 The Court must further the overriding objective by actively managing the case. Active case management includes:
(i) The early identification of the real issues;
(ii) The early identification of the needs of the witnesses;
(iii) Achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case;
(iv) Monitoring the progress of the case and compliance with directions;
(v) Ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way;
(vi) Discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings;
(vii) Encouraging the participants to co-operate in the progression of the case; and
(viii) Making use of technology as appropriate and available.
6.2 The Court must actively manage the case by giving any direction appropriate to the needs of that case as early as possible.”
“9. Case preparation and progression
9.1 At every hearing, if a case cannot be concluded there and then, the Court must give directions so that it can be concluded at the next hearing or as soon as possible after that.
9.2 At every hearing the Court must, where relevant:
(ii) Set, follow or revise a timetable for the progress of the case, which may include a timetable for any hearing including the trial;”
“10. Conduct of a trial and ancillary proceedings
10.1.2 Must consider setting a timetable:
(i) That takes account of those issues and of any timetable proposed by a party; and
(ii) May limit the duration of any stage of the hearing;”
“10.1.4 May limit:
(i) The examination, cross-examination or re-examination of a witness; and
(ii) The duration of any stage of the hearing.”
“11. TIME LIMITS
Note: The directions in this Part set down the maximum time-limits within which it is desirable that every case should be disposed of. Every effort must still be made to dispose of cases as soon as reasonably practicable. which in some cases will result in a substantially quicker disposal. The directions in this part do not apply to proceedings which are before the Drug Treatment Court or other diversionary programmes.
Timeframe for the completion of proceedings: summary matters
11.1 (i) Every matter to be tried before the Summary Court should aim to be concluded within a period not exceeding 12 months from the date of the First Hearing.
(ii) In the event of conviction, the defendant should be sentenced by the Court before which he was convicted within a period not exceeding 56 days from the date of conviction, save only in the case of exceptional circumstances.
Custody Cases
11.2 In the event that a defendant is remanded to custody, his trial shall be concluded:
(i) In the case of a matter triable in the Summary Court, within a period not exceeding 9 months , unless there are exceptional circumstances, from the date of the first hearing.
12. ADJOURNMENTS
Criteria for Grant of Adjournment
12.1 Adjournments shall be granted only if the Court is satisfied that:
12.2 (i) (ii)
(i) There is good cause for an adjournment; and
An adjournment is necessary in meeting the interests of justice.
Where there have been two or more adjournments for the same
reason(s), the Court shall only grant a further adjournment if exceptional circumstances are shown.
(ii)
Case involving defendants in custody and cases in which the trial has already been adjourned must not be adjourned unless exceptional circumstances can be shown to the satisfaction of the Court.
(iii)
Once a trial has been commenced, an adjournment shall only be granted where the grounds for the application could not reasonably have been known at the time the trial started or where there are exceptional reasons for justifying the delay.
12.3 Applications for an adjournment should be rigorously scrutinized, in particular, the following factors to be taken into consideration:
(i) Summary justice should be speedy justice;
(ii) The more serious the charge, the more the public interest demands that a trial take place;
(iv) The age of the complainant and any other significant witnesses;
(v) Whether or not the refusal of an adjournment would compromise the defendant’s ability to fully present his defence; and
vi) The history of adjournments, at whose request any previous adjournments have been made and the reasons provided.
Notes:
1. The overriding objective of this Practice Direction is the just and expeditious disposal of cases. This cannot be achieved by the Court readily granting adjournments without good cause being shown. Particular care is required in respect of applications that are made once a trial has been commenced and the general presumption in such cases should always be against an adjournment being granted.
2. This Part applies equally to cases in which a defendant’s attorney has failed to attend. An attorney is obliged to notify the Court immediately should they become aware of a conflicting fixture. A defendant is not entitled to repeated adjournments to secure the right to legal representation; R v Robinson (1985)
32 WIR 330, PC. The overriding consideration must be the requirements of
justice, for both the Prosecution and the defence; R v De Oliveira [1997] Crim
L.R. 600.”
“Preliminary Inquiries
13.7 (i) The defence shall notify the Prosecution if the Preliminary Inquiry is to be contested at least 7 days before it is due to be heard;
14. Effective Date
14.1 This Practice Direction shall come into effect on the 1st day of September
2015.
Dated this 29th day of July 2015
The Hon. Anthony Smellie Chief Justice”

I have posted all the relevant clauses that relate to TIME.

As can be seen from the above there are many and SPEED would seem to be of the essence.

It will be interesting to note if the Chief Justice’s directive will be followed with just such an emphasis and the backlog will lessen during 2016.

With no word from government concerning a new law court(s) and an election coming up I fear the Chief Justice might just as well re-read his 2014 Message.

However, there might be some merit in what has been proposed in Jamaica, although I know it has been the intent to do similar here. Without adequate funds nothing will change unless suddenly crime has an amazing fall in numbers.

We might just as well wish upon a star. A very distant one. One backlogged in space.

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