Concern mounts over judges' errors
published: Sunday | January 25, 2004

From left, Wolfe, Phillips, and Samuels-Brown

Barbara Gayle, Staff Reporter

THERE IS MOUNTING concern in the legal fraternity that some of the nation's judges have been making serious blunders while presiding over criminal trials, resulting in the Court of Appeal having to order new trials or allow the appellants application.

The Court of Appeal said on December 19 last year that where significant errors were made and there was doubt as to the likely impact of the fairness of the proceedings, the conviction could not stand.

Since the Court of Appeal started the new term on January 12, it has so far quashed five convictions because of judges' errors on the law and on the facts.

But although judges' errors have at times caused severe hardships, the appellants cannot sue the state or the relevant judge to get compensation.

CANNOT SUE

Asked whether the Government made ex gratia (voluntary) payments to those who suffered from judges' errors, Michael Hylton, Q.C., Solicitor-General, said on Thursday: "You cannot sue the state for the errors judges make during the course of their judicial function. There are thousands of those people and on a public policy basis the Govern-ment could not do so."

This situation was not unique to Jamaica, he said. "Worldwide you cannot sue judges or the state for errors made on the part of the judges," he said.

In his view, ex gratia payments could be made in circumstances where there was undue delay or negligence on the part of the state. He referred to an Appeal Court case in which he recently recommended ex gratia payment as it had taken five years to be heard instead of two, because the notes of evidence were not ready.

Attorney-at-law Jacqueline Samuels-Brown who appeared in many of the cases before the Court of Appeal said: "I think that the persons who are acquitted in certain circumstances, our law should make provisions for them to be compensated for expenses incurred in relation to their trials."

She pointed out that in the United Kingdom provisions were made under the Legal Aid Act for such persons to be compensated for their legal expenses.

Hillary Phillips, Q.C, president of the Jamaican Bar Association said the Bar had not considered the issue of compensation in cases where the Court of Appeal had ruled that there were misdirections by trial judges. Her immediate response, she said, was that compensation was not a necessary direction for the law to take.

She suggested the need for more training for the judges as well as providing them with more information and other necessary ingredients to assist them in performing their duties. She also urged prosecuting counsel and defence counsel, in the interest of justice, to assist judges in their summations, particularly when errors were made in relation to the facts of the case. She said misdirections were not "deliberate" but are due to inadvertence, omissions or mistakes.

Miss Phillips also cited the need for a Judicial Code of Conduct which, she said, would put the emphasis on judges being more focused.

The Jamaican Bar Association (JBA) in October 1996 called for a Judicial Code of Conduct after Chief Justice Lensley Wolfe, in presiding over a trial in the Home Circuit Court that month, ordered attorney-at-law Terrence Williams to hand over his client's instructions. The Chief Justice then perused the instructions and showed them to the prosecutor.

Another call was made by the JBA in 1997 for a Judicial Code of Conduct after Mr. Justice Basil Reid jailed an alleged rape victim overnight on July 21, 1997 because she spoke "too softly" during her testimony in court.

A Judicial Code of Conduct would lay down rules and guidelines which the judges must follow. Although the code would not have sanctions, the judges would be expected to behave in accordance with those rules.

Ian Forte, president of the Court of Appeal, conceded that there were quite a few cases last year in which judges made mistakes in their summations.

"Judges need to be more careful in their summing-up to the jury," he said. "There is a Bench Book which has all the proper guidance which judges are to give to the jury."

VOLUME OF WORK

However, he suggested that given the volume of work in the criminal courts "the judges try to rush to get through the work and that could be one of the reasons for the misdirections."

The Bench Book originates from England and some judges here see the need for Jamaica to have its own Bench Book in relation to Jamaican appeal cases, because not all Jamaican cases go to the United Kingdom Privy Council.

On December 19, 2003, the Court of Appeal, in freeing Anthony McCalla because of misdirections by a trial judge, called on lawyers for the Crown and the defence who are involved in criminal trials, to pay careful attention to the summation. The court felt that had the lawyers paid careful attention, the judge would have been alerted to the error and would have corrected it. "This gross distortion of the defence would not have been left to the jury," the court said.

Jurors do not have the benefit of the transcript of the proceedings when they retire to the jury room, the court pointed out. Instead, jurors have to rely on a repetition of the evidence and relevant statements by the judge during the summation.

Although the Court of Appeal said it was human to err and "judges were not exempt from this human failing", it warned that "where significant errors are made in the repetition and there is any doubt as to the likely impact on the fairness of the proceedings, the conviction cannot stand."