Editorial | Timelines for cases

There have been several iterations, over many years, of Justice Bertram Morrison’s exhortation of defence and prosecution lawyers to stop wasting valuable court time with meritless cases.

The behaviour does nothing for the cause of justice, but adds to the backlog of cases, which itself is a form of injustice. Which are arguments often alluded to by the chief justice, Bryan Sykes, in his campaign to clear up the backlog in Jamaica’s courts and to have a justice system, with respect to the time it takes to clear cases, that meets global standards.

Perhaps it is time to stop beseeching and act. It can’t be beyond the abilities of Parliament and judicial stakeholders to fashion an arrangement that upholds the precepts of justice, but exacts penalties from lawyers who engage in the kinds of behaviour of which Justice Morrison complained.

Chief Justice Sykes has a deadline of 2026 for Jamaica to meet the benchmark of disposing cases within two years and for reducing the backlog for active cases to no more than five per cent. That standard has already been met in the parish courts, where most Jamaicans are likely to come into direct contact with the justice system. By the middle of last year cases in these courts were, on average, disposed of in less than 12 months and the trajectory was for it to fall further. The courts’ active cases backlog was 1.3 per cent.

WORK TO BE DONE

But in the higher courts, where the case clearance rate hovered at a bit over 70 per cent, there is work to be done. Indeed, the court’s performance data for 2022 indicated that there would have to be a weighted annual average clearance rate (new cases against those that are disposed of) of 130 per cent over a three-year period to remove the backlog and become current.

That is a part of the backdrop against which Justice Morrison spoke last week when he opened the Hilary session of the Home Circuit for the parish of St James.

“Whenever you have a case that is hopeless … why must it require any scientific artifice to throw yourself on the mercy of the court?” was his rhetorical question to defence attorneys.

He added, “That is what justice is, giving to a man what is due to him. But we wait, we prolong, in the hope or expectation that the system will somehow forget the evils that have been heaped upon another citizen of this country. That cannot be justice and counsel needs to advise their clients whenever that is so.”

Justice Morrison went on: “Equally, for the prosecution, where the case is weak, it should not be made to stay on the list for five years. I am coming from a parish, St Catherine, where it is just as plentiful in terms of crimes in Jamaica, and I am seeing cases languishing on the list for seven years, only to be thrown out after the eighth year. That cannot be justice. That practice must stop.”

That bar of probity, this newspaper believes, ought to be higher for prosecutors, given their unique roles and the almost unfettered powers, and resources of the state, enjoyed by the director of public prosecutions (DPP), for whom they work.

Indeed, the current DPP often touts the office’s adherence to high ethical standards and how seriously its members take their roles as ministers of justice. Justice Morrison, however, appears to have removed some of the sheen.

TRIAL DATES

Justice Morrison’s observations show indirectly in the court statistics. In the Home Circuit Court (the Supreme Court sitting in the parishes) over 33 trial dates are set for every 10 cases. Or 3.3 per case.

Put another way, a third of the time judges, lawyers, plaintiffs, witnesses, jurors, stenographers and so on assemble in a courtroom, the matter for which they gather isn’t heard. In the court system general, there is a 75-per-cent trial date certainty, 20 percentage points below the expected standards.

Justice Morrison suggested that among the reasons is defence lawyers hoping for an angle to exploit.

And despite the claims to the contrary, prosecutors probably fear looking bad and further dents to conviction rates if they abandon mired cases.

Whatever the reasons of either party, the game isn’t good for the delivery of justice.

One option for defence lawyers is to exploit the increasing intolerance of judges for breaches of people’s constitutional right to a fair hearing within reasonable time. Perhaps they should be pursuing more of these cases – and not only at appeal.

That won’t entirely solve the problem. Lawyers, therefore, have to be prevailed upon to behave in accordance with their code of professional conduct as defenders of justice, not to cynically exploit it. And beyond any inherent powers, perhaps judges ought, in law, to have the right to determine if a case has had too many requests for adjournments and continuances and to apply a test for fault, similar to that used by Justice Jones in the 2002 Norris McLean case.

And borrowing from the principle established in Pratt and Morgan of a timeline for the completion of all appeals by death row convicts before their sentences become cruel and inhuman, perhaps a regime could be established for certain kinds of criminal matters before judges abandon the matters.