Sybil Hibbert, ContributorFollowing the December 2005 verdict in the Kraal
murder case, the justice system has evoked continued public interest, criticism, concern and an announcement of long-awaited government action to be taken to tackle some of the vexing problems plaguing such a vital area in the lives of the citizenry.
Most importantly, it affects the
citizen, it affects crime and it affects the police, among other important matters of security.
All Jamaica and Jamaicans, in particular, should have no hesitation in uniting in a common desire to rid our country of the scourge of being the record holder of 1,650 murders for the year 2005.
One hopes that the action contemplated by the Government will give back to the citizens of this country a feeling of safety, of freedom from fear of violence from any quarter and a closing of the gap between the security forces the police in particular and the public, in respect of trust.
With regard to the police, the system we have in place allows for the proper investigative methods to be used in apprehending those allegedly engaged in criminal activity and the police are trained to deal with such eventualities; some have even had the benefit of
overseas training.
There is no evidence to suggest that any government or any organisation or for that matter, any individual, has ever condoned the wilful and wanton slaughter by the police or other security
personnel, of any citizen of this country, as far as I know.
When, as it seems to be happening lately, there are cases of questionable police fatal shootings, the system has made provision to investigate and take the necessary action.
In any event, evidence adduced in a court of law before a jury is what is relevant to a conviction or acquittal. No trial by radio, TV, or in the print media can take the place of trial by jury. Jurors are judges of fact and the law is the sole prerogative of the trial judge. A jury's verdict, whether you like it or not, is final. you can take it to a higher court, if you like, but that's it, except in the case of a conviction.
As I pointed out, there is no doubt that the justice system is fraught with a
multiplicity of problems, and the fact is that governments on both sides of the political divide have failed to prioritise and address aspects of the system that cause and have caused more than great concern to both public and private
sector interests.
On the question of criticism of the system, however, it is stated dicta Lord Russell of Killowen C.J. in R. Gray "that judges and courts are alike open to criticism", but an avalanche of scurrilous references and/or abuse of judges and the administration of justice, are not permissible.
In the case of The Attorney-General v. Times Newspaper Ltd. (1973) 3 All E.R. 54, Lord Reid had this to say:
"Freedom of speech should not
be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice."
Perhaps it is not generally known that judges and courts are not allowed to respond to criticisms, no matter how scurrilous or scandalous they may be, unless of course, the point of criminal contempt of court is reached.
So that, let me state for the benefit of the self-righteous agitators and others whose criticisms of the trial judge and the administration of justice in the Kraal and other murder trials, are bordering on the scurrilous and the scandalous, that:
"... the very Courts, which first
proclaimed freedom of speech as a fundamental freedom and which have so zealously guarded it throughout the centuries, have never held that right to be a shield for those whose conduct constituted the
criminal offence of contempt of court by interfering with the administration of justice and endangering the rule of law". (McRuer, C.J. in a Canadian case involving contempt of court).
Earlier, Chief Justice McRuer, who was commenting on "words spoken outside of the court and not dealing with any pending case", in the matter of R.V. Glanzer et al, (1963) 1 C.C.C. 364, had this to say:
"For at least 200 years, it has been the law of England, as it is today the law of Canada, that scandalous and scurrilous abuse of a judge in his judicial work is a contempt of court, not because of the injury done to the judge, nor for the purpose of vindicating his character, not for the purpose of taking vengeance on the perpetrator of the scandal, but for the purpose of preserving respect for the administration of justice (and I might add, the rule of law) in the Queen's courts."
On the other hand, the court made reference to third edition of Halsbury, vol. 8 (1954) in which, Lord Hardwicke had, as early as 1742, characterised as scandalising a court or a judge in respect of contempt in the face of the court in these words:
"The power to fine and imprison for a contempt committed in the face of the court is a necessary incident to every court of justice. It is a contempt of any court of justice to disturb and obstruct the court by insulting it in its presence and at a time when it is actually sitting ... It is not from any exaggerated notion of the dignity of individuals that insults to judges are not allowed, but because there is imposed upon the court the duty of preventing brevi manu (extemporaneously) any attempt to interfere with the administration of justice."
People with an interest in the result of certain murder cases that have been tried over time in Jamaica, will recall a number of times when judges in the circuit have expressed displeasure with verdicts
delivered by juries. One such instance was the late Chief Justice, the Hon. Sir Colin MacGregor, presiding over the Trelawny Circuit. After the verdict, in dismissing the jury, he told them:
"Some men are fools, some are imbeciles but you are a set of dishonest men and women," and then he banished them from further jury service "for life".
I hold no brief for the police and I hold no brief for the judiciary. But since, as in the words of the poet Browning, suddenly some figures seem to be "At last awake/From life, /That insane dream we take, /For waking now", maybe it's a good time for a few reminders.
Let me say categorically that I do not support and have never supported abuse of any citizen of this country by the security forces; nor do I support what the human rights activists refer to as extra-judicial police killings.
In the same vein, I have never and will never support the "mash down yard" syndrome, common in Jamaica today, to vilify the administration of justice, when the system we have in place does not work to the individual satisfaction of its detractors.
I could parade for public consumption, scores of cases over the last 40 years where men and women, accused of the most vicious and villainous crimes, have walked free from the circuit courts after being only defended and after the most rigorous prosecution by some of the brightest stars from the Office of the Director of Public Prosecutions.
I don't recall hearing any clamour for the grieving families in those cases. And I remember the tears, the pain and the
sorrow of the widows, the widowers, the infants and children bereft of their parents. What of the human rights of those people, a lot of them gunned down in the political warfare and tribalism in this country?
In one particular case in the 60s, where five accused went to a dance on Headley Avenue off the Washington Bouelvard about 2:00 a.m. and fired several shots from M-16 rifles killing at least three
people and injuring dozens of other
people, the five were later acquitted in the No. 1 Home Circuit Court on a no-case submission. And the trial judge, the late Mr. Justice Hercules, in directing the jury to return a formal verdict of not guilty, told them: "That evidence led by the prosecution couldn't hang a fly".
And there was not one word in protest from any member of the public. Where was the righteous indignation then? The shouts of jubilation that greeted those acquittals made the applause at a rock concert pale in significance.
Thou now dost awake from thy
slumber, Jamaica? Tut! Tut!
Understand that every life lost by violence and other questionable circumstances is a tragedy for this country. There are no winners in death by violence. What we need is a constructive broad-based think tank of positive solutions so that our young men and women may be able to look forward to the hopes and aspirations to which they are entitled; not to the prospect of hunger, a lack of proper education and proper educational and medical facilities, deprivation and more prison space. That is why we sing "Jamaica, Land We Love!"
Sybill Hibbert is a retired Gleaner court reporter. She wrote for this newspaper between 1958-1976.
