CCJ MATTERS – OCTOBER 2017
YOUR MONTHLY NEWS AND UPDATES ABOUT THE CCJ – OCTOBER 2017
It is interesting to me that when courts go on hiatus there is an impression that the judges are on vacation. Nothing could be further from the truth. For example, at the end of September, the Caribbean Association of Judicial Officers (CAJO) staged an excellent conference involving judicial officers at all levels across the Caribbean in beautiful Curacao. The CAJO conference’s excellent work in judicial education continued unabated this year, with three days of thought-provoking speeches, collaboration among peers from the English-, Dutch- and Spanish-speaking territories and healthy dose of disruptive thinking. Also, contrary to popular belief, the judges had a good time in part inspired by the hospitality offered by our gracious hosts, the judiciary of the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and Bonaire, St. Eustatius and Saba.
For the CCJ, this is also a time in which we begin to pilot new projects. During the hiatus, we began broadcasting hearings from Courtroom 1 live. The live streaming of our cases for public viewing support the broader mission of the Court to facilitate access to justice by providing all interested persons, wherever they are, with immediate access to witness the adjudication processes of the Court.
All matters from Courtroom 1 are now being live-streamed.
These developments are also timely since the Court’s caseload has steadily increased to where, during the past year, the number of matters filed has notably increased in comparison to previous years. This is tangible evidence that the CCJ has widened the scope of access to justice to persons throughout the region. And importantly, now you can view the Court, as it happens, and review it as well at your convenience.
During the month, a significant judgment was delivered in the matter of Katrina Smith v Albert Sealy. A synopsis is included in this month’s Registry Report but I encourage you to review the full judgment which clarifies points that would be applicable throughout the region. The featured CCJ employee this month is Ms. Semone Moore. As the sponsor of the CCJ’s Employee Engagement programme, I have been proud to work with her. She represents just one of the many exceptional employees at the CCJ. News from around the region for this newsletter comes from the JURIST Project who recently published their Model Guidelines for Sexual Offence Cases in the Caribbean Region. A significant amount of work has gone into this exercise which has potential to have a far-reaching impact on this sensitive issue.
I was also pleased by the keynote address that was delivered at the CAJO Conference by the CCJ’s most recent addition, Mr. Justice Barrow, who delivered an address on which examined the reasons behind backlogs in courts and also put forward solutions that can be readily implemented. It is heavily condensed in this newsletter because of space constraints but I urge you to read the complete speech on CCJ’s website.
I hope you are edified, as well as, entertained by this month’s newsletter.
The President of Caribbean Court of Justice, the Right Honourable Sir Dennis Byron (seated), signs the revised rules governing the Original Jurisdiction. The CCJ’s Registrar and Chief Marshal, Mrs. Jacqueline Graham, who was also a part of the review committee, watches as the document is authorized.
After a review of its rules of court, the Caribbean Court of Justice (CCJ) announced the publication of its Original Jurisdiction and the Appellate Jurisdiction Rules 2017 earlier this year. In 2014, the CCJ adopted the standard for the revision of its rules of court every two years. The revised rules, which are now on the Court’s website, were amendments to its previous publishing in 2015.
The President of CCJ, the Right Honourable Sir Dennis Byron, highlighted the need for periodic reviews of Court practices; “The CCJ recognizes that is important to evaluate our procedures for efficiency and make sure that they are documented on a regular basis in order to continue to deliver fair and accessible justice. This rules revision exercise was particularly important as the Rules now accommodate recent changes to our internal processes, principally the adoption of e-Filing”.
The Court’s latest introduction of e-Filing allows persons to file a matter with the Court at their convenience and offers a structured way to make submissions by guiding the user through various required fields of information. In January 2017, the CCJ began using the Curia court management system which, in addition to electronic filing, has a performance management module and one for case management.
Other substantive amendments in the 2017 Rules include:
- ending the requirement to file multiple print copies of documents;
- introduction of electronic signatures (in a specified format) to remove the requirement for printing and signing specified documents before uploading and filing;
- adoption of a gender-neutral approach in the wording of the Rules;
- shifting away from use of Latin terms in favour of simpler language in the Original and Appellate Jurisdiction rules;
- introduction of express rules to provide for an application for special leave to appeal to be treated as the hearing of the substantive appeal and the basis on which costs should be determined in such cases.
In its Original Jurisdiction, the CCJ interprets the Revised Treaty of Chaguaramas for countries, businesses and citizens of the Caribbean Community (CARICOM). In its Appellate Jurisdiction, the Caribbean Court of Justice hears appeals from lower courts in both civil and criminal matters from countries which have decided that the CCJ should be their final court of appeal. The new rules of court became effective in April 2017 and are currently available for review and download ccj.org.
Semone Moore, the CCJ’s Public Education and Communications Officer, exudes a large presence at the CCJ which belies her diminutive stature. At only 5 feet, she confidently strides through the halls, greeting people in a friendly way and spreading smiles in her wake. Her journey at CCJ has been long but fruitful. Ms. Moore started as an Intern at the CCJ when her mother, a supervisor working with the CCJ’s janitorial contractor, heard about an internship programme for children who worked at the Court and asked whether her daughter could apply. She served as an intern for a period of 6 months and joined the staff in 2011.
At the time Semone was teaching at the UWI Open Campus, Pre-University Centre, while working on her MBA at the UWI-Arthur Lok Jack Graduate School of Business in St. Augustine. She wanted a grounding in the business and thought the CCJ would be an ideal opportunity to get that training. She literally started in the mailroom at the CCJ, as a Customer Service Officer in the Protocol Unit, and then was given the opportunity to act as the Public Education and Communications Officer in 2014, in place of a colleague who was on maternity leave. Her performance on the job was so impressive that she was promoted to Public Education and Communications Assistant when the holder of the post returned.
Ms. Moore continues to excel at the CCJ, as she was chosen as the head of the Employee Engagement project team earlier this year. This, while doing the preparatory courses towards a doctorate and buying her first home at the age of 33. “I cannot say that I have not learned here. I have been exposed to a lot of different things and Seanna Annisette and Dr. Lilla, while they may not have taken an active mentoring or teaching role, I learned from them”.
She is the youngest on a three-person team who successfully implemented an Employee Engagement Survey and are now monitoring project teams who are working on implementation activities to address the concerns of staff. Ms. Moore stated, “one of my proudest moments has been the Employee Engagement programme. I believe in HR and I think too often people see employees as being secondary to technology or to processes and policies. No. It’s your employees that make your organization efficient and to see CCJ, as a public institution, as a court, that is always steeped in tradition, to see us take that step and focus on employee engagement and focus on making this place a better place to work, I felt proud about that”.
The experience she believes augurs well for the Court as it continues to embrace forward-thinking technology and practices. She noted that it was heartening to see how many junior employees have volunteered to become agents of change by working on the various committees, demonstrating an ownership of the process. Ms. Moore believe the Employee Engagement programme shows that “we believe in our employees and we are taking the steps toward ensuring that we treat the most important resource that we have properly.”
During the month of September, the Registry is preparing for the Court’s opening in October 2017 including scheduling upcoming matters for the first court term. While the Court was on hiatus, the Judges continued work on judgments.
On the 1st of September 2017, judgment was delivered in the case of Smith v Selby. The judgment declared that Ms. Katrina Smith should be considered the spouse of her late partner, Mr. Albert Michael Selby.
The matter, which was filed at the CCJ in March, centred on the interpretation of Barbados’ Succession Act which states: “for the purposes of this Act, reference to a ‘spouse’ includes: a single woman who was living together with a single man as his wife for a period of not less than 5 years immediately preceding the date of his death”. The CCJ examined the legislative regime that existed prior to the Act and noted that prior to its enactment, the law excluded the survivor of a cohabitational relationship from benefiting on the death of the partner who had not left a will.
Ms. Smith and the late Mr. Selby had been living together since 2002 until his death in 2008.The late Mr. Selby had no children, was predeceased by his parents, and survived by his siblings including the respondent Mr. Albert Anthony Selby. Read the judgment here: Judgment.
Troy Stanford v The Queen
The Caribbean Court of Justice (CCJ) today upheld the decisions of the Barbados Court of Appeal and the trial court judge in the Appellate Jurisdiction matter of Troy Stanford v The Queen. This decision dismissed the notion that the trial judge failed to direct the jury on the issue of self-defence based on the evidence presented. The CCJ also gave guidance on the obligation of the trial judge to direct the jury on defences.
Troy Stanford, the conductor of a ZR259, was charged with murder following an altercation resulting in the shooting death of ZR289 conductor Matthew Joseph on 15 June 2008. The trial judge directed the jury on the defences of “accident” and “provocation”. Stanford was convicted of manslaughter and appealed to the Court of Appeal of Barbados. He argued inter alia that there was sufficient evidence to direct the jury on “self-defence” and the trial judge had failed to do so.
The Court of Appeal dismissed the appeal and held that the trial judge was right not to have directed the jury on self-defence. Stanford’s appeal to the CCJ advanced that the trial judge had an obligation to direct the jury on any defence which arose on the evidence of the matter, which he purports includes that of self-defence.
by the Hon. Mr. Justice Denys Barrow, Judge of the Caribbean Court of Justice
(A condensed version of his keynote speech delivered to the conference of the Caribbean Association of Judicial Officers, 28 September 2017 in Willemstad, Curacao)
Today, in some common law jurisdictions in the region, the freedom with which the judiciary is criticized would shock an observer from an earlier age. Instead of respectful, criticism is now bold and unforgiving and can come from the most respectable of sources, including Bar Associations and members of the judiciary. This gives a gravity to such criticisms that makes it imperative that we, as judicial officers, address them.
Bar Associations have been devastatingly critical of judicial performance, going so far as to call for the removal of judges for delays in the delivery of judgments. This has happened not just once or twice, in our region.
Criticisms of delays made by the judiciary itself, although measured, are the more cogent because so authoritative. Recently, an experienced judge was quoted in a newspaper as saying to an august gathering that the judiciary in his country is inefficient. In his speech, the judge said this was common knowledge, debated daily and the Caribbean Court of Justice (CCJ) had repeatedly criticized this inefficiency.
The repeated criticisms of delayed judgment by the CCJ has been made of a number of countries. It is widely known that delay occurs at all stages of litigation; between filing and trial, between trial and judgment, between judgment and appeal and, starting all over again at the appellate level, between filing, hearing and judgment. Illustrative of judicial delay is the chronology in the very recent CCJ decision in Smith v Selby  CCJ 13 (AJ).
The case, concerning whether the unmarried woman, who had lived with her partner, had succession rights, had started nine years earlier, on 16th April 2008. It took the judge two years, on 6th August 2010, to rule on a preliminary point of law that the woman, Katrina, was entitled to a grant of administration as spouse. The brother of the deceased appealed and more than five years later the Court of Appeal heard the appeal, on 14th January 2016. Just over one year later, it delivered Judgment, on 14th February 2017, reversing the decision in favour of Katrina. Less than 6 months after Katrina appealed to the CCJ, on 1st September 2017, the CCJ gave its decision in her favour.
The almost-nine years it took to reach the stage of a judgment by the Court of Appeal, on a preliminary point of law, included three years of delay in the delivery of the two judgments. Such delay is no longer shocking and certainly no longer surprising because we are aware of greater delays.
In Justice Delayed is Justice Denied: Jamaica’s Duty to Deliver Timely Reserved Judgments and Written Reasons for Judgment Professor Sha-Shana Crichton took a comprehensive look at the problem in the context of Jamaica, where some judgments have not been delivered for more than 10 years. It clearly emerged that the problem of excessively delayed judgments is familiar across common-law countries – well beyond the Caribbean.
Crichton discusses the causes of delay in delivering judgments and they are well-known to this gathering and so need only brief mention, for context. Among the causes are inadequate financial resources, too few judges/overburdened judges, ineffective records management, voluminous documents filed by attorneys, complexity of cases, attorney delay, lack of specific time allocated for judges to write judgments, absence of judicial codes to provide guidance to judges on roles and duties, failure to discipline or remove judges, and judicial attitudes.
Another problem is that common law as compared to civil law judgments may be too long. As a matter of impression, if a typical common law judgment would be 10 to 20 pages, in contrast, a judgment in a Dutch court would run 5 to 10 pages. French judgments are even shorter, and those in the Court de Cassation are notoriously short.
We must begin the extended conversation it will take to change our ‘feel’ for the ‘natural’ length of a judgment, because of the great benefits of such a change. Consider how much more quickly a judge would both start and finish writing a judgment intended to be more like a memorandum than a chapter in a textbook. As a delay reduction mechanism, it may be that we need to institutionalize short judgments.
Professor Crichton identifies leadership and oversight by Chief Justices in several countries as significant measures that have been used to combat judgment delays. Two common factors were brought to bear in those jurisdictions. One was the encouragement of a judicial attitude of expediency, efficiency and the importance of timely delivery of reserved judgment to the pursuit of justice; and the other was increased leadership and supervision.
In the case of Jamaica, current efforts to reduce the number of delayed judgments and to improve efficiency and performance within the courts include ensuring judges had adequate time for judgment writing, encouraging greater use of ex tempore oral judgments, and keeping an inventory of outstanding judgments and regularly reviewing the inventory.
In the Eastern Caribbean Supreme Court, the device of keeping an inventory of outstanding judgments as a measure to combat judgment delays began with its then Chief Justice, Sir Dennis Byron, around the turn of the century. The introduction of Information Technology and case management software enabled the electronic production of a list of outstanding judgments which included the names of the cases, the hearing date and the judge assigned to write the judgment. This provided additional pressure on judges to deliver their judgments and, as one study found, it significantly reduced the average time it took to deliver reserved judgments.
Also, delay reduction starts with the reforming judiciary being made statistically and, therefore, inescapably aware of the length of delays. In many instances, unawareness contributes to delay: judges under intense pressure to get through a mountain of cases have little time to keep track of outstanding judgments.
As demonstrated in Guyana, even a constitutional amendment is not sufficient in itself to eliminate delay. The Time Limit for Judicial Decisions Act No 9 of 2009 amended the Guyana Constitution to provide that a judge could be removed from office “for misbehaviour or for persistently not writing decisions or for continuously failing to give decisions and reasons therefor within such time as may be specified by Parliament …” This was regarded as a nuclear option because the virtual complete immunity of a judge to removal from office are bedrock constitutional provisions.
A former Attorney General wrote in the Guyana Chronicle of June 8, 2010, that this radical initiative came to nothing. One anecdote to explain the alleged failure is that lawyers in Guyana decided it was unwise to complain about the delays of a sitting judge before whom they would have to continue appearing. Another anecdote is that while the Act has not achieved perfect success, it is the law and judges are fully aware they must comply with it. Efforts to eliminate backlog have been strengthened by the force of the Act and hopefully its effect will be increased when supported by other measures (including training).
Monitoring of delay
Implicit in the Guyana Time Limit Act is the need for monitoring the performance of the judiciary. As the experience in the Eastern Caribbean and now in Jamaica shows, a judiciary can well monitor and manage itself. The material from Crichton indicates that delay reduction has worked when a head of judiciary takes it on himself or herself to conduct an enduring campaign to eliminate delay. But better than having a Chief Justice take on management of delay, is to have the members of the judiciary themselves take it on.
The way in which the ECSC began the practice of listing outstanding judgments is a tribute to self-monitoring. Leading up to the introduction of this practice, the judges were considering adopting time limits for delivery of judgments and consideration turned to ensuring compliance with the agreed three months’ limit. And it was the collective of judges themselves who proposed the keeping of a list, so that they could monitor their own performance.
In the end, timely delivery of judgments is a marker of judicial efficiency and part of a court’s case management obligation. It is part of the case management function that the court should generate and share a list of pending cases, showing outstanding judgments, and so promote self-monitoring, peer review and discussion.
Excessive delays can be eliminated or avoided largely by the efforts of judges themselves. Many of you gathered here are exemplars of the personal commitment to avoid delays and your good example affirms the fact that delay or despatch can be so very much a personal matter.
And that leaves us with the simple concluding thought: that one person – one judge — can make a difference.
The unedited version of Mr. Justice Barrow’s speech is available here.
The Judicial Reform and Institutional Strengthening (JURIST) Project today launched its Model Guidelines for Sexual Offence Cases in the Caribbean Region. The Guidelines are intended to provide internationally accepted best practices for the management of sexual offence cases, and offer a rights-based approach to the treatment of complainants and vulnerable witnesses, including children, involved in sexual assault cases.
Speaking at the launch, the Honourable Mme. Justice Rajnauth-Lee, Judge at the Caribbean Court of Justice (CCJ) explained that even though the CARICOM region has made progress in promoting gender equality, sexual violence perpetrated against women, girls and boys remains a significant problem. The region, she said, experiences high levels of sexual violence – the majority of which is underreported and ineffectively dealt with by the justice system.
She noted there have been improvements in the justice system’s response to sexual assaults and the survivors of sexual violence who seek redress from the courts. “However, a 2016 Baseline Study, commissioned by the JURIST Project and undertaken by UN Women, found that the justice system’s management of sexual offences and its treatment of complainants and witnesses remains uneven, uncoordinated (in relation to the relationship between justice sector actors who work along the justice chain with sexual offences) and continues to lead to the re-victimisation of survivors who seek protection and redress,” the CCJ Judge said.
Justice Rajnauth-Lee stated that the Guidelines will provide guidance to justice sector stakeholders involved in the reporting, investigation, prosecution and adjudication of sexual offences.
Dr. Penny Reedie, Project Director, JURIST hailed the development of the Guidelines as a major milestone in the life of the Project. “These Guidelines, are the result of hard work, dedication, and commitment to improve the management of sexual offences cases throughout the region and the treatment of survivors of sexual offences,” she noted.
It is hoped that the Guidelines will be adopted by all countries in the region and that its implementation will result in:
- speedy adjudication of cases and reduction of case backlogs over time;
- improved responses to survivors that will enable their full participation in the justice system, increase offender accountability and reduce secondary victimisation;
- a trained and skilled cadre of cross-sectional professionals including judges, court personnel, police and attorneys to efficiently respond to sexual assault cases, survivors and witnesses; and
- increased public confidence in the justice system as it relates to the handling of sexual assault cases.
The Model Guidelines for Sexual Offence Cases in the Caribbean Region is available on the JURIST Project website here.
The JURIST Project is a five-year regional Caribbean judicial reform initiative funded under a CAN$19 million arrangement with Global Affairs Canada. The Project is being executed by the Caribbean Court of Justice (CCJ) on behalf of the Conference of Heads of Judiciary of CARICOM. The CCJ and other regional partners are also contributing approximately CAN$4 million to the Project.