Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697650056348.pdf (Bahamas)
REMARKS of THE HONOURABLE CARL BETHEL, QC ATTORNEY-GENERAL AND MINISTER OF LEGAL AFFAIRS On the occasion of THE CEREMONIAL OPENING OF THE LEGAL YEAR 2018 SUPREME COURT OF THE COMMONWEALTH OF THE BAHAMAS NASSAU, THE BAHAMAS (11 JANUARY 2018) 1 May it please you, My Lord Chief Justice (Acting) and Judges of the Supreme Court.
Might I also acknowledge the presence of the President and Justices of the Court of Appeal; the Chief Magistrate and other magistrates; the President of the Bar Association; Madam Director of Legal Affairs and the Director of Public Prosecutions; colleagues at the Public and Private Bars, special and distinguished guests, Ladies and gentlemen.
Once again, we gather as a legal fraternity to commemorate the ceremonial opening of the Legal Year—which has become the most celebrated day in the legal calendar of The Bahamas.

Those of us familiar with the history of this legal tradition know that the import of this morning’s ceremony lies not in pomp and pageantry, nor an opportunity for members of the legal profession to dress up in ceremonial garb and parade downtown.
It is foremost, an opportunity to take stock of the year that has been, and to set goals and milestones for the year ahead.

Moreover, the real purpose is to come together as a profession to collectively pray for guidance at the start of the legal term and to re-affirm our commitment to upholding the rule of law and defending access to justice for our citizens.

On this note, I wish to specially recognize and thank the Most Reverend Patrick Pinder and the Rt.
Reverend Laish Boyd, for their respective roles in hosting the celebration of Red Mass, held Sunday past at St. Francis Xavier Cathedral, and this morning’s service at Christ Church Cathedral—which they so graciously do every year.
[My Lords: Just yesterday, we celebrated the 51st anniversary of Majority Rule Day, which marks the developments in 1967 when for the first time in the modern constitutional history of the Bahamas, political leadership fell to a Government which was truly representative of the masses.

That was an important “freedom” won for political justice.
But it also signalled an important milestone—legally realized on the attainment of independence in 1973—in the transition of the modern Bahamas to accepting full responsibility for the constitutional and legal development of this country.
So, as we assess the year that has passed, and reflect on the more than 50 years that have elapsed since that second-most liberating of days, we can take some pride in what we have achieved in creating a justice system that is responsive and accessible to our citizens, even as we consider initiatives to improve our justice product going forward.
In 2 this regard, we are reminded by the renowned philosopher Frederick Nietzsche that it is not good enough to have freedom from something; but to know what that freedom is for.

My Lords: I think it would be most apposite to begin with the observation that the last calendar year might be described as one of transitions and transformations.

And indeed, with the many legal issues and challenges which reared their heads in 2017, and those projected for 2018, this year augurs to bring more of the same.
We saw these transitions and transformations manifested in a number of ways.

Firstly, there was a general election in May of 2017, which saw a change of Government.

Secondly, and of more direct concern to the Judiciary and the administration of justice, we witnessed several important changes in the leadership of the higher judiciary.
In December 2017, a final tribute was paid to Dame Anita Allen, former President of the Court of Appeal, during a farewell sitting to commemorate her retirement from that Court at the end of 2017, and just a few short weeks the former Chief Justice Sir Hartman Longley was appointed as President of the Court of Appeal, replacing Dame Allen.
You M’Lord were appointed as Chief Justice (Acting), to fill the vacancy created by the departure of Sir Hartman and, very recently, Justice Milton Evans was elevated as an Acting Justice of Appeal, along with former Chief Justice, Sir Michael Barnett, on his return to the Bench, has also been appointed as an Acting Justice of the Court of Appeal; both for the period of six months.
On behalf of the Government and people of The Bahamas, allow me to extend our warmest congratulations to the new President of the Court of Appeal, the Acting Chief Justice, Acting Justices of Appeal Barnett and Evans on Your Lordships appointments in 2017, and to thank you for your service in your continuing service to the cause of justice and the Bahamian People.
We have every confidence that the administration of justice will continue to improve and flourish under your Lordships’ leadership and stewardship of the higher judiciary.

In other appointments related to law and order, this year also saw the appointment of a new Commissioner of Police, Mr. Anthony Ferguson, who is here with us this morning.

I wish to publicly congratulate you, Commissioner, on your appointment and wish you a successful tenure.
The Police Force has a vital role to play in the prevention, detection, and (as our delegate) in the prosecution of crime; and particularly in the maintenance of 3 law and order.

We look forward to continuing our work with you and your management team to strengthen the edifice of the rule of law.
Legislative initiatives My Lords: When the Government came to power, it promised a very ambitious legislative agenda, and foreshadowed several pieces of legislation intended to improve the administration of justice, improve the rule of law, and to create transparency and accountability in Government.

And so, it is a useful jumping off point to begin my remarks with a review of some of the major legislative initiatives.
At the cornerstone of these legislative initiatives was the Constitutional Amendment Bill, the purpose of which is to create the independent office of the Director of Public Prosecutions, and devolve the prosecutorial powers of the State (hitherto vested in the Attorney-General), to the DPP.

This Bill has passed both Houses of Parliament and has now been enacted.
Arrangements are now being put in place for the gazetting of the amendment and its full implementation by way of the issuing of the Appointed Day Notice, which will happen by the end of this month.

The key achievement of this constitutional amendment is that the power of the AG to institute and undertake criminal proceedings, as well as to take over and discontinue such proceedings, will now be transferred to an independent public officer, with security of tenure equivalent to that of a Judge.
Prosecutions will now be commenced in the name of the DPP.

We believe and trust that this erection of a constitutional “cordon sanitaire” between a political appointee and public prosecutions will enhance popular trust in the integrity of the day-to-day exercise of prosecutorial discretion.

My Lords: Even the change in the framing of charges represents a symbolic coming of age in the legal development of The Bahamas.
For the first time in history, prosecutions will not be commenced in the name of the Queen, or the English monarch, as constitutional Head of State, but in the name of a public legal officer of an independent Bahamas, representing the people.
Further, considering the issues that have arisen in the past few years with the use of the prosecutorial discretion under various Attorneys General—especially as it relates to the power to discontinue a prosecution by way of nolle prosequi — this Bill significantly undergirds the separation of powers already enshrined in our constitutional system.

The 4 Bahamas now joins the growing number of jurisdictions, which are in the majority, with a truly independent DPP.
Financial Services industry My Lords: There were also several legislative initiatives undertaken to defend and further enhance the reputation of The Bahamas as a financial services centre and to ensure that The Bahamas as a jurisdiction remains current with international industry standards and best practices.

These include amendments to the International Tax Cooperation (Amendment) Act and the Automatic Exchange of Financial Account Information (Amendment) Act, both of which have been brought into force.
The first two pieces of legislation paved the way for the Bahamas to sign on to the Multilateral Convention on Mutual Administrative Assistance in Tax Matters, which the Bahamas signed on 15 December 2017, becoming the 116th jurisdiction to join the world’s leading instrument for transparency in taxation administration and combatting cross-border tax evasion.
FATF AML/CTF standards In a tandem with these initiatives, the OAG has been leading a task force of public and private sector stakeholders engaged in ensuring that the Bahamas remains fully compliant with the revised FATF anti-money laundering/counter-terrorist financing standards.

In July 2017, the FAFT published the Bahamas Mutual Evaluation Report, as part of its fourth round of mutual evaluation of countries.
We were placed in the category of “Enhanced Follow Up”, which means that the Bahamas has to present a follow-up report on the actions taken to remedy deficiencies in its MER by November of 2018, at the CFAFT Plenary Meeting.

Although the evaluation Report found that the legislative framework for the supervisory regime for AML/CTF is well developed, it identified a need to improve sanctions to targets certain specific areas of risk, which will entail further amendments to the legislative regime.
In order to address perceived shortcomings in our supervisory regime we have prepared several new Bills which will shortly be debated and we trust, passed in Parliament, namely a new Proceeds of Crime Act, a new Financial Transactions Reporting Act and an amendment to the Travellers Currency Declaration Act.
These Bills are presently before Parliament and in short order will be joined by an Anti-Terrorism Bill 5 which will serve to counter not only terrorism but also proliferation offences sometimes associated with terrorism, such as the trade in or possession of biological and chemical weaponry as well as in nuclear materials.
As chair of the money-laundering task force, I wish to thank all of the stakeholders from the private and public sections, and other industry professionals, who have volunteered their time and worked tirelessly on the preparations for the MER Report, and who have pledged their continuing support to address and remedy any deficiencies in The Bahamas compliance with the international standards.
My Lords: Before I leave this subject, let me say that I have every confidence that the standard of the oversight and regulation of the Bahamas financial services industry and the effectiveness of our AML/CTF system meets and exceeds international standards in many cases.
However, The Bahamas, like other small offshore financial jurisdictions, is caught up in the process of the globalization of financial and related services, where the ever-changing rules are made by powerful blocs of countries, acting through supra- national organizations.

Therefore, whether we like it or not, we have to remain in sync with these standards to protect our financial services industry and avoid being classified as non-cooperative or at risk.
My Lords: Integrity and accountability are increasingly demanded of those who hold public office.

In this regard, the Government tabled several pieces of legislation that are intended to deepen democratic governance in accordance with international standards and promote the rule of law.
These include: (i) The Integrity Commission Bill, which seeks to create a Commission to supervise the conduct of politicians and senior public officials to ensure standards of integrity and ethical conduct in public life; and (ii) The Ombudsman Bill, which seeks to provide an alternative avenue of redress for citizens from governmental abuse or maladministration.

These Bills will be debated and hopefully implemented in 2018.
My Lords: We expect there to be significant push-back in respect of the Integrity Commission Bill, and criticisms have already been sounded about the Bill being too intrusive.

However, we will continue the process of engaging in widespread public consultation on major legislative initiatives to obtain feedback from relevant stakeholders and the public, and these views will inform the final legislative product.
What must be made clear to all, though, is our resolute determination to enhance the standards of 6 conduct in public life and to stamp out the blight of corruption or, perhaps, the perception of corruption, in high places.

Office of the DPP My Lords: Criminal litigation has occupied the majority of the time of the prosecution side of the OAG.
Not only have our able prosecutors dealt with the day-to-day prosecution of offences, but they have also continued apace with the efforts to reduce the backlog of criminal cases, which has manacled our criminal justice system for the past decade.

In this regard, may I draw your attention briefly to some key performance statistics.
The year 2017 saw the maintenance of a very successful criminal justice conviction rate, which averaged in the range of 67% for all offences, and was just over 70% for murder, and related offences, such as attempted murder and manslaughter.

For example, of the 78 murder and related offences prosecuted in 2017, 54 resulted in guilty verdicts, with 16 not guilty verdicts.
My Lords: This is still a ways off from the 75-80% conviction rate which we are targeting—but still a very decent conviction rate as far as statistics go for comparable jurisdictions.

The use of the Voluntary Bill of Indictment (“VBI”) process to circumvent the time- consuming and inefficient preliminary inquiry system and expedite the trial process continued in 2017, with the year witnessing the serving of 231 VBIs.

This practice will continue in 2018.


Finally, 31 of the backlog of cases were disposed of during 2017 by way of nolle prosequi, compared with 92 cases in 2016.

My Lords: this threefold decrease is indicative of a policy to use the power of the nolle more sparingly, and only in those cases which are hopelessly beyond prosecution.
We will redouble our efforts to continue to reduce the significant backlog of cases in 2018, and to do this we will have to be prepared to make some changes to the constitution of the Courts, which I will mention shortly.

As explained, the advent of an independent DPP also means that in short order these prosecutions will be taken over and continued by the DPP, under a prosecutorial regime that is substantially insulated from the Executive.
If that insulation were in any way to be pushed aside, the public will know; as everyone will have to be informed by way of the 7 gazetting of any such directions.
The first such specific direction that I propose to gazette is that any specific directions from the Attorney General to the DPP must be: (i) (ii) (iii) (iv) Transparent; Consistent with lawful authority, principles and international standards and best practices; Consistent with the due safeguarding of the actuality and the perception of prosecutorial independence; and further Such specific direction to the Director of Public Prosecutions, when Gazetted, shall state what the direction is and why such direction is given (inclusive of the rationale for such direction).
It is envisaged that this gazetted direction will be binding into the future as it sets forth a rational and legally defensible framework for proper relations between the Attorney General and the Director of Public Prosecutions; ensuring prosecutorial independence on the one hand, and full public disclosure on the other, whenever the Executive should feel impelled to intervene.

The second specific direction will promulgate a binding Code of Conduct for Prosecutors.
Infrastructural, technological improvements My Lords: It is come to be accepted worldwide that the use of technology is an important tool in improving the delivery of justice.

We therefore intend to continue leveraging ICT technology, and introducing more efficient methods of processing and managing cases to create an agile criminal justice system that delivers fair and proportionate criminal justice services.
While it has become fashionable to give various appellations to initiatives to improve justice—for example, the initiative has been called Stop Delaying Justice!

in the UK and locally it has been called Swift Justice—there is no magic in ascribing any nomenclature to this process.

What is more important is to ensure that the rule of law and fairness is not sacrificed by a swift rush to justice.
Thus, the rule of law and fairness will continue to be the guiding principles, even as we build on the initiatives commenced under my predecessors in this Office, and augment and expand these to improve the efficiency and effectiveness of the criminal justice process (both in the magistrates and Supreme Court).
8 In this regard, some of the initiatives that we will continue to build on or implement to improve the efficiency of justice include:  the enhanced use of digital technology in the preparation and presentation of cases  greater use of video links in court to facilitate the testimony of witnesses (especially police and other witnesses who might be located in different islands, and sometimes different jurisdictions)  encouraging the use of guilty pleas (or plea bargaining as it is sometimes called) and incentivizing this with appropriate and proportionate adjustments in sentences  encouraging greater use of video-recording of interviews to reduce and eliminate   challenges to the voluntariness of confessions leveraging the use of ICT, not only within the courtroom, but to improve the administrative functions, such as the use of electronic diaries, to prevent loss of judicial time through conflicts and unavailability of counsel implementing an electronic bail management system, which will allow accused persons on bail to report at designated police stations where their identities and reporting will be confirmed by way of digital fingerprints and biometric scans; and  encouraging magistrates and judges to more actively manage the trial process as opposed to being neutral arbiters or judicial umpires My Lords: Towards the last mentioned item, we will shortly recommence consultations with the legal profession and judiciary with a view towards the modernisation of the Rules of Court by the implementation of Bahamian Civil Procedure Rules which we hope will replace the existing Rules of the Supreme Court.
My Office will propose new legislation or appropriate amendments, where needed, to facilitate and provide the legislative framework in which these initiatives can take place.

In this regard I can foreshadow that amendments will be proposed in short order to enhance the full anonymity of witnesses, fully hiding the face and altering the voice, in cases where there is a clear and present danger of the assassination of witnesses or danger to their family and dependents.
We are also about to launch consultations with the judiciary and the legal profession upon the desirability of introducing electronic filing Rules which will provide an electronic and digital method to file and serve legal documents, affidavits, pleadings and legal submissions; thereby greatly reducing the use and wastage of paper; the need to bundle and carry large bound tomes; and the loss of filed documents.
9 My Lords: Over the next several months my Office will work closely with the judiciary and the Ministry of Public Works to create two new Courtrooms, one a civil family court and the other a criminal court to give focused attention to Sexual Offences and Domestic Violence matters, and also on “backlog” cases.
The civil court will be renovated and housed in the courtroom formerly used in the eastern downstairs part of this building, and the criminal court at the north-east corner of the Saffrey Square arcade.

This will allow for the appointment of additional Justices of the Supreme Court.

My Lords: I have not said very much about the work of the civil side of my Office, as invariably the criminal justice system occupies much of the focus during these annual reviews.
But I wish to note that the everyday challenges of providing advice to all branches of Government, providing an efficient level of cooperation with international law enforcement or evidential requests, drafting, revising and reforming legislation, and conducting civil litigation remained a central focus of the OAG.
Office of the Public Defender One of the initiatives which came into full operation during the course of the year was the Office of the Public Defender, which was intended to fulfil a vital role in the delivery of justice by first of all providing accused persons with defence lawyers at the expense of the State in serious criminal matters.
Importantly, it also addressed one of the areas in which was a perennial source of delay in the criminal justice system—the lack of availability of counsel for persons charged with serious offences, which could not be effectively addressed by the antiquated system of Crown Briefs.

In this regard, I am pleased to report that a total of some 144 cases were referred to the Public Defenders’ Office during 2017.
However, while the advent of the Public Defenders’ Office has increased access to legal representation for persons charged with serious criminal offences, it does not remove the need for a comprehensive system of legal aid, to ensure that justice is not denied to persons who may have a civil claim against the state simply for lack of resources.
In this regard, we will explore, with the private bar and stakeholder organizations, such as the Eugene Dupuch Law School, methodologies for introducing a comprehensive legal aid system, learning from the experience of others in this regard, and tailored to meet the needs of this jurisdiction.
10 The citizens security & justice programme My Lords: The Public Defenders’ Office was one of the initiatives developed under the auspices of the Citizens Security and Justice Programme, a loan facility under the IDB, providing funding for improving access to justice in various countries.
We will continue to partner with the IDB and international partners such as the Commonwealth Secretariat—who have provided tremendous support in the area of criminal justice reform—to ensure that our approach to the criminal justice system continues to be benchmarked against international standards of efficiency.
Commonwealth Law Officers Meeting On this note, mention should also be made of the very successful hosting by the AG’s Office of the Commonwealth Law Officers Meeting in October 2017, in Nassau, under the theme “Strengthening the Rule of Law through technology”.
In addition to sharing best practices and shared experiences from the large and smaller Commonwealth States for improving various aspects of civil and criminal practice, the meeting also saw the launching of a Commonwealth Office of Civil and Criminal Justice Reform.
This platform contains a portal which allows legal practitioners and the citizens of the Commonwealth a to access a general information on a variety of legal issues, as well as provides restricted access for prosecutors and other public lawyers within the Commonwealth to exchange technical assistance and advice from colleagues in real time.
My Lords: As I conclude, it should be observed that our initiatives to improve justice represent an acknowledgement, to paraphrase former Secretary-General of the United Nations Kofi Annan, that “the rule of law is not a luxury and that justice is not a side issue.” My Lord, Ladies and Gentlemen: It only remains now for me to express my thanks to the legal and administrative teams at the Office of the Attorney General and the associated departments within my bailiwick, in particular the Registrar General’s Department, for their support during the year and going forward.
Though often criticized, they provide yeoman’s service day in and day 11 out, sometimes in challenging conditions and with limited resources, to keep the machinery of justice functioning.
In conclusion, it is my hope that the efforts of all those engaged in the profession of the law, at the bench or the bar, public or private, and those supporting in an administrative capacity, be guided in 2018 by the single quest for “justice”, which Lord Gardiner, QC, a former Lord Chancellor of the UK, described as “the conscience of the legal profession”.
Finally, on behalf of my colleagues in the Attorney General’s chambers, I assure the Honourable Acting Chief Justice and Justices of both the Supreme Court and Court of Appeal of the continued support of my Chambers and that of the DPP in the tasks of upholding the rule of law and attaining justice for all.

Thank you, and may I wish each and all of you the best for 2018.

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