Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697649822742.pdf (Bahamas)
Crisis of Confidence: State of Relations Between the Public and The Bahamas Legal System John Delaney QC Hon Attorney General 26Feb10 “Crisis of Confidence: The State of Relations Between the Public and The Bahamas Legal System” The Hon.

Attorney General - John Delaney QC for delivery on Friday, 26th February 2010 COB’s Lunch and the Law Seminar [Recognition of persons according to protocol….

Ladies and Gentlemen, students, Good afternoon. ]


I start by thanking President Hodder, in her representative capacity on behalf of the Law Library of the College of the Bahamas, for the kind invitation to address you in what has become an important annual legal discourse among the law faculty at COB, the legal fraternity, and the community at large.
I also take this opportunity to recognize the significant contributions President Hodder has made to COB over the past three years in injecting new intellectual zeal into the organization and aligning it firmly on the trajectory to attaining university status.

We wish her well and great success as she prepares to leave us and take on whatever new challenges this new chapter in her life will bring.

Well done to the organizers of this event on this your fourth installment of Lunch and the Law.
I look forward to seeing this event continue and perhaps expand into a much larger annual legal symposium where legal issues of interest and import to the community can be ventilated and a cross-section of views obtained.

That said, the theme you have chosen is thought-provoking and challenging, but apposite.

Critical commentary in the media on the state of the legal system, especially the criminal justice system, has become common place.
Not only does the topic force us to put the functioning of the legal system under a microscope, it draws out important notions of law and society, democracy, governance, justice, and the functioning of the body politic.

Obviously, these are matters which require serious and full consideration, and the best we can hope to achieve over a lunchtime discussion is simply to begin the conversation.
Measuring public confidence At the outset, I observe what I consider to be important limitations or caveats which influence the approach to this topic.

The first, and perhaps the most essential, is the question of how does one measure the level of public confidence in the legal system?

What indices are to be used?

In this regard, the topic assumes that there is a crisis of confidence by the public in the legal system, a view which is no doubt fostered by critical commentary in the press.
However, in actuality, there is little or almost no empirical data which has been gathered in the Bahamas in the nature of a representative public opinion survey recording public perception in respect of the legal system as a whole, or specific branches such as the police or courts.
1 Crisis of Confidence: State of Relations Between the Public and The Bahamas Legal System John Delaney QC Hon Attorney General 26Feb10 Thus, to some extent, the topic – Crisis in Confidence - presumes a premise which has not been empirically established.

I want to be clear, however, that this is not to say that many persons or even large sectors of society may not legitimately hold adverse views of the legal system.
As I shall point out, while I do not see the relation between the public and the legal system as amounting to a full-scale crisis of confidence—for reasons which I shall explain later—admittedly, there are many challenges and inefficiencies in the system that need to be repaired.

I simply make the point that from a social science perspective, there has really not been any objective statistical data collected on the issue to serve as an accurate barometer of public perception.
Another important consideration is that an individual perception’s of the legal system is likely to be influenced or coloured by his/her experience with it.

Let me illustrate this point with the following anecdote.

Just a few days ago, I received a call from a professional lady and mother of two teenage children.
Her opening line to me was: ―I want you to know that I am completely disillusioned with the legal system in this county…it does not treat women and children fairly.‖ She then recounted that:  Her divorce proceedings had been ongoing for the past 4½ years; she had obtained her decree nisi during the first nine months and in respect of that had no complaint.
 However, the ancillary aspects that would provide for custody and maintenance of the children of the marriage was not resolved even 3 years after the grant of the decree nisi, and as a consequence she alone has had to provide support for the two children.

 Her disbelief—How could the legal system allow a single mother to go years without concluding her divorce, and, especially, without dealing with matters involving the maintenance and custody of the children.
 Her conclusion—the legal system is not fair to women and children.

As transpired from the rest of the conversation, she was not displeased with the periods when she actually appeared before the court.

However, she complained that her lawyer does not return her phone calls; has never adequately explained the divorce process, its stages or projected timeline; and her lawyer has failed to have the outstanding matters set down for hearing in an expeditious manner.
Her case is not the norm, but the conclusion she drew was that the legal system is biased against women and children.

As you would correctly surmise, her problems seem to be attributable more so to the failures of the lawyer (one of the actors in the legal system itself) and not an institutional failure in the system as such.
Another part of the public perception matrix is that even without any failings in the system, it has the potential to leave persons with a negative or positive perception 2 Crisis of Confidence: State of Relations Between the Public and The Bahamas Legal System John Delaney QC Hon Attorney General 26Feb10 depending on the outcome of the particular matter in which they are interested.
The person who is convicted of an offence will also likely fault the system, while the person acquitted might think it works fine.

The person who wins a civil action is likely to have favourable perceptions, while the loser may not.
I recently heard this characterized as the ―Junkanoo syndrome‖ based on the cry often made by unsuccessful junkanoo groups at the end of the New Year’s or Boxing Day parade: ―Dey rob us!‖ Against this backdrop, I wish to be very clear that I do not purport to offer any definitive view of the state of relations between the public and the Bahamian legal system.
Indeed, I cannot, because as I have indicated, one would have to canvass a suitably representative sector of Bahamian society to obtain data on their views from which reasoned, statistical generalizations may be drawn.

Therefore, the best I can hope to do is to provide my view of the state of affairs, looking through the prism of the diverse roles I occupy in the legal system and my responsibilities for various aspects of that system.
Context I set the stage for my remarks by reference to an abstract of a project description in a US AID project for increasing the effectiveness and efficiency in the judicial/legal systems in the Caribbean, with a focus on the Eastern Caribbean states.

The abstract for that programme described the problem as follows: 1 ―There is a widespread perception that the legal systems in the Caribbean are inefficient and ineffective.
This is borne out by the fact that the average time for the presentation and resolution of civil cases before the courts is five years.

Alternative dispute resolution systems are either non- existent or in an embryonic state.

Consequently, respect for the rule of law is eroding.

These problems have an impact on the drug trafficking and other illegal activities in the Caribbean.
They also constrain compliance with new and existing environmental regulations and laws, and Entrepreneurs are foreign and domestic investment.
reluctant to risk their capital in Caribbean countries, perceiving that the legal systems are incapable of providing decisions within a reasonable time frame.‖ I have provided that assessment of Caribbean legal systems as a backdrop for several reasons:  First, because most of you would recognize that the foregoing description might be transposed to the Bahamian context.
 Secondly, it illustrates the point that the perception that the justice system does not work as well as it should exists not only in terms of the local assessment of 1 Available at http://www.usaid.gov/pubs/bj2001/lac/crp/crp_ads.html, accessed 12th February 2010.

3 Crisis of Confidence: State of Relations Between the Public and The Bahamas Legal System John Delaney QC Hon Attorney General 26Feb10 our legal system, but also from an international perspective.
Indeed, part of the problem with the legal systems in the Caribbean is that of reconciling international expectations (and sometimes jurisprudence) with the realities of the local legal system.

 And thirdly, it makes the essential point that this is a problem which is largely shared by many of the Caribbean countries, with similar legal systems, historical background and societies.
This makes the problem not just one of law and society, or the perceived inefficiencies in the legal systems of the region, but a problem of development and governance.
Presentation Objectives In the short time allotted to me, I hope to accomplish the following: (i) (ii) (iii) (iv) Provide an overview of the legal system and indicate it essential components; Look at some of the ways in which the system attempts to promote public confidence and why this is so vitally important; List some of the key problems or inefficiencies in the system that can diminish public confidence; and Indicate what I see as some of the measures that might be put in place to achieve increased efficiency and effectiveness of the legal system, and improved the public perception.
May I indicate also, that I intend to keep my formal presentation as brief as possible, so as to leave a little time for a discussion.

Overview of the System The legal system of a country strictly refers to its systems of laws and the courts which administer them.

The courts are at the heart of the legal system.


For practical purposes, the legal system might be said to include: laws, judges and magistrates, courts, Office of the Attorney General, lawyers in private practice, Police, Prison, Ministry of National Security, and the public at large.

It encompasses all of those persons who have a role to play in the administration of justice.

I want to emphasize that the public is also a part of the legal system.
Often the tendency is to divorce the public from the legal system by creating the false dichotomy of an ―us‖ and ―them‖.

But the public has a very important role to play in the system, mainly because criminal trials in this country continue to be by jury, who carry out a fundamental role as judges of the facts, alongside the Judges of the law.
In addition, the role of citizens as witnesses in cases is essential, and their willingness to participate and give candid testimony manner has a direct correlation to the likely successful outcome of a prosecution.

What is confidence in the legal system?

4 Crisis of Confidence: State of Relations Between the Public and The Bahamas Legal System John Delaney QC Hon Attorney General 26Feb10 Confidence in the legal system involves expectations that are both values-based and results-based.
Confidence in the system requires a belief that the legal system is based on values of judicial independence, impartiality, integrity and professionalism.

On the other hand, it also requires a satisfaction that the legal system is efficient and fair, and that when it is accessed by the citizen, whether it the context of a civil claim or criminal matter, a fair and just result can be obtained in a reasonable time.
Evidence that our society does indeed repose a real measure of confidence in the courts is that, in many regards citizens, groups and governments routinely seek and habitually accept and comply with judicial decisions, without the need for any form of coercion.

This occurs not only in the resolution of routine matters of the law, but to resolve very important disputes and constitutional issues.
Witness:  Community has recourse to courts (crime and punishment), and for resolution of civil claims  Families have recourse to courts (matters of personal law, matrimonial and divorce, probate, adoption, etc.)
 Unions have recourse to resolve their disputes (union disputes2)  Politicians have recourse their disputes (election petitions); composition of Parliament (myriad challenges to elections, Marco City3 and Pinewood;4 the Elizabeth Constituency Bye-election protest ballot case) the recent senate challenge5; and, this week, to resolve  Churches have recourse to resolve their disputes (Methodist Church dispute) 6 Institutional devices for engendering and maintaining confidence At the institutional level, there are rules and conventions built into the system which seek to preserve confidence by ensuring that the system is independent and impartial.
This means that the courts have the exclusive right to exercise judicial power and is protected from interference from any of the other branches of government.7 The judge is protected from improper or unlawful influences in the way he is able to carry out his or her functions.

This protection is ensured by the manner of appointment of the Judges, granting them security of tenure and conditions relating to their remuneration and pensions.
Thus, for example, the ordinary judges are appointed by the Governor-General on the advice of a Judicial and Legal Services Commission, while the Chief Justice and Justices of Appeal are appointed by the Governor General on the advice of the Prime Minister after consultation with the Leader of the Opposition.8 Once 2 Examples 3 Pleasant Bridgewater v. Zhivago Laing and Ors.

v 4 Allyson Maynard-Gibson v Bryon Woodside and Ors.

.

5 P.G.

Christie v Rt.

Hon.


Hubert A. Ingraham … 6 The Bahamas Methodist Church and others v. The Hon.

Vernon Symonett and Others ….


7 Hinds v R… 8 Reference 5 Crisis of Confidence: State of Relations Between the Public and The Bahamas Legal System John Delaney QC Hon Attorney General 26Feb10 appointed, judges have security of tenure and may only be removed from office for inability to discharge the function of the office or for misbehaviour, and then only after a legal process that involves investigation by a tribunal.
This protection is continued by a special act (The Judge’s Remuneration and Pensions Act) which creates a commission to triennially make recommendations with respect to remuneration of Judges, again with the intent to place such matters outside the hands of the executive.

In addition to these requirements, judges are expected to be of good character and are required to swear an oath to ―do right to all manner of people after the laws and usages of The Bahamas without fear, favour, affection or ill-will‖9.
Also note that the independence and impartiality required of the legal system are not private rights of judges.

These are rights which are intended to redound to the citizen, as the Constitution provides for a trial by a fair and impartial tribunal within reasonable timeframe.

Code of conduct for the legal profession There are also rules and conventions in place to regulate the conduct of lawyers, who are significant actors in the system.
As indicated by the anecdote at the beginning of my talk, a person’s experience of the legal system can easily be colored by the personal conduct of his or her legal representative.

The system is meant to be self-regulating, and the courts themselves are able to exercise some control over lawyers, who are officers of the court.
Additionally, the Act and Regulation10 dealing with the profession contains detail code of conduct, which sets out the lawyers responsibilities to his client, the court and other lawyers.

As many of you would be aware, there is a Disciplinary Body which is able to take disciplinary action against lawyers when complaints are made against them as regards their conduct and to punish them, including disbarment.
To date, there have been several lawyers who have been suspended or disbarred from practice for various breaches.

Key Deficiencies Some of the matters which are said to pose the greatest challenges to maintaining public confidence in the legal system largely revolve around practical issues relating to the functioning of the system.
In no particular order of precedence, issues in respect of which there has been criticism published in the media are the following: 9 First Schedule, s. 2, Official Oaths Act, Ch.

31.

10 Legal Profession Act; Code of Professional Conduct Regulations… 6 Crisis of Confidence: State of Relations Between the Public and The Bahamas Legal System John Delaney QC Hon Attorney General 26Feb10 1.

2.

3.

4.

5.

6.

7.


The back-log of criminal cases clogging the system and resulting in long delays in the prosecution of matters.11 The physical infrastructure of courts – namely, lack of sufficient buildings to house the Supreme Court and Magistrate Courts, the disparate location of such courts and the relative state of disrepair of some of those facilities.

Prison overcrowding.


The perception that serious criminals are able to obtain bail too easily, and that Judges are disproportionately favouring the rights of accused persons over the rights of victims and their families.

The perceived deficiencies in the prosecutorial agencies: the police force and the Office of Attorney General, which it is alleged contributes to the inefficient processing of cases.
Occasional rogue lawyers who abuse the system and do not provide the service to which their clients are entitled.

Lack of access to justice by a persons unable to afford legal fees, especially in a jurisdiction which does not have a proper legal aid system.

Measure for improving Some of these issues are already being confronted by initiatives underway: 1.
A review of criminal backlog of cases has been ordered by me with a view to winnowing out those matters which may no longer be feasible for prosecution.

Additionally, a more aggressive scheduling of criminal cases for trial in the Supreme Court and an increase in the number of courts assigned to criminal matters have been implemented with a view to achieving an increase in the number of criminal cases processed annually; 2.
As to the courts physical infrastructural challenges, I have previously announced the Government’s plan for improvements that include: (i) the wholesale renovations and expansion of the Supreme Court facilities in the Bank Lane/Parliament Square area; (ii) the completion of the magisterial complex at South Street, which would consolidate the Magistrates’ Court in a single location; and (iii) the construction of a second coroner’s court at Victoria Gardens.

3.
3.

The process of prosecutions in the Magistrates Courts and Supreme Courts is under review with a view to maximizing the number of cases moved directly to the Supreme Court for trial as opposed to incurring a time delay of first 11 See ―Audit Ordered Into Backlog‖, Macushla N. Pinder, http://www.jonesbahams.com, accessed 25th February 2010.
7 Crisis of Confidence: State of Relations Between the Public and The Bahamas Legal System John Delaney QC Hon Attorney General 26Feb10 undergoing a preliminary inquiry before the Magistrates Courts.

Further, trained police-attorneys have been assigned to the police prosecution team in the Magistrates Courts.

4.

To relieve prison crowding, electronic monitoring of convicts will be forthcoming, with selection of the supplier of the device presently underway.
Thoughts on the way forward regarding remaining issues are as follows: 1.

Commissioning of a public opinion survey on the perception of the effectiveness of the legal system, and factoring the results thereof into continuing efforts to improve the system.

2.

3.

4.

(I wonder if the COB Law Faculty and the EDLA might wish to assist in such an exercise.

I hereby issue an invitation.)


Reviewing the Bail Act for possible amendment, such as to stipulate a period deemed reasonable for which a person might be held prior to trial.

It is to be noted, however, that the question of bail is a complex one, involving a delicate balancing exercise by the courts of fundamental rights and freedoms and the need to protect society.

Ultimately it is one for the courts, not the executive.
While some elements of the public might view with disfavour the granting of bail, one has to be reminded that it is intended to protect several hallowed legal and fundamental rights principles: the right to liberty, and the presumption of innocence until proven guilty.
However, it stands to reason that if one of the considerations that the judges will apply in considering whether to grant bail is the timeframe within which the accused can be brought to trial, improvements in the processing of cases will reduce the necessity for the grant of bail.

Enhanced training of the essential actors in the system, including judges and magistrates in specialized areas; lawyers in the OAG, and the police in areas of prosecution and forensics.
Conducting public education awareness programmes, including seminars and town meetings and the production of public literature such as pamphlets and other information to educate the public about the legal system and how it operates.

Canadian criminologist Neil Boyd, of Simon Fraser University, asserts that to a large extent the way to meet a crisis of confidence is the legal system is to improve legal education to the public.
Conclusion A properly functioning legal system is essential to any civilized society, and public confidence is essential for any effective legal system.

As a society we must not shirk from a challenge.

I believe that the initiatives discussed today have the potential to improve the efficiency and effectiveness of the legal system and the maintenance of confidence in it.

THANK YOU.

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