Dominica: Lawyers call for urgent reforms within the judicial system

The Dominica Bar Association (DBA) has listed a number of recommendations it said is aimed at improving the delivery of justice in the country, as it supported the “remonstrations,” by a High Court judge at the end of the January assizes last month.

In a statement, the DBA said that the remonstrations by Justice Colin Williams were predicated by similar remarks at the close of the September assizes last year.

“We wish to support the sentiments of our Honourable Resident Judge in the criminal jurisdiction, with regard to the significant and in-excusable delays in the criminal justice system and the need for improvement. We note, as has been recognised by Justice Williams, that the cause of these delays is multi-faceted.” the DBA said.

Justice Williams had said that the rule of law is being compromised by systemic failures within the judicial infrastructure. He made reference to overcrowded prison cells and the prolonged duration of cases before the Court, plagued by lengthy delays in trials.

“When things are wrong, they want you to say all is well. But it is not, “he said as he highlighted the prevailing culture of complacency that threatens to erode the fabric of justice.

“I have to temper my words very carefully because people get very sensitive when you speak the truth. They don’t like you to say true things, they prefer you to be diplomatic or nice and pretend that all is well when it is rotten.

“In this particular era, you can’t offend people and if speaking the truth offends them then you can’t speak it and you must tell people that they are doing well when they are not,” he said, noting also the backlog of cases and the excruciatingly slow pace of the Preliminary Inquiries (PI).

Justice Williams questioned the definition of success in the context of the judicial system and despite recording a full completion rate for the January session, he told the closing of the assizes that there were many people languishing in prison without trial, some for years on end.

“So, what is success. “From this assizes, between January and March, we had 13 matters and from this, only two went to trial. But the 13 matters are completed. That is a success, isn’t it, that’s a 100 per cent record, we have no matters left over. But tell that to the 119 males sitting down in the prison on remand awaiting trial. Now is that success?”

“I ask these questions as a person who is in the administration of justice, and who must see things of a particular perspective as to how do we preserve the rule of law,” he added.

In its statement the DBA said that it is aware that delays occur at almost every stage of the process, both for summary and indictable matters.

“In our experience, delays occur primarily at the stages of making the case file ready for court, and at the preliminary inquiry stage for indictable matters. Many times, the mere disclosure of evidence to defence counsel by police prosecutors takes several months.

“Once the preliminary inquiry or summary trial begins, there are oftentimes inefficiency or outright failure in the summoning of witnesses by the police to attend court to give their evidence.

“There are instances when even the investigating officer is absent at the hearing, and therefore the case cannot move forward. As indicated before, a paper committal can be quicker and more efficient, but the training and resources for its more frequent use is lacking,” the DBA said.

It said while of course that some delay is caused by magistrates and also lawyers, it is of the opinion that a revitalisation of the criminal justice system on a whole would reduce and almost eliminate all unnecessary delays.

” This is because a robust working system would negate the culture of delay that has arisen in our courts. The benchmark of one year mentioned by Justice Williams in his recent remarks, from charge to High Court hearing (or summary trial in the Magistrates Court), is achievable”

However, the DBA said that to accomplish this the prosecution of cases must be given the priority of resource allocation, dedication and work ethic that it requires.

“An accused remaining on remand in prison for an excessive amount of time before his/her case is finally heard is unconstitutional and hence unfair to the accused. In this case, the accused person has a clear constitutional route to seek redress for the deprivation of his/her right to a fair trial within a reasonable time.

“However, the excessive delay is also grossly unfair to the victims of crimes, who are left without a sense of closure and without justice being served. Moreover, such victims are often left without relief, as their route to seeking redress is often not so clear.

“We wait with bated breath to read the determination of the Court in a recent Trinidadian case where the family of the fatal victim of domestic violence sued the State for alleged persistent delays and injustice in dealing with her complaints and charges against her assailant. This judgment will undoubtedly have persuasive effect in our jurisdiction,” the DBA said.

“It is important to note, further, that unreasonable delays in the criminal justice system may also undermine the safety of our society, when possible criminal elements are released without trial due to the excessive delay in having their cases tried.

“It is for all of these reasons that the Dominica Bar Association has, over the years, made and continues to make representation to the authorities concerning the delays in not only the criminal justice system but the entire justice system altogether.”

In its latest set of recommendations, the DBA is calling for training for and allocation of more resources to, the more frequent use of paper committals, the appointment of more magistrates, and the streamlining of magistrates specifically for criminal matters as well as a re-focus, where required, by investigators, prosecutors, magistrates and lawyers, to making a concerted effort to pursue matters with diligence. 

In addition, the DBA wants the stricter use of available sanctions and repercussions for untimely prosecution of cases and unreasonable delay and or absenteeism of defence counsel. It said that these would include, the striking out of cases by magistrates where there are persistent failures on the part of investigating officers and police prosecutors as well as the taking of disciplinary measures against incompetent and or inefficient investigating officers/police prosecutors by their relevant commanding officers.

The DBA said it was also supporting Justice Williams who noted that the weaknesses in the system are known, not new, and need to be cured.

“And further, if those who know better and can do better, do not, then the rule of law is consequently being consistently undermined, to the detriment of our nation. As he stated, “this is (our) country, and we have to do better”. Let us work together to do better.”