The Dominica Bar Association has heard the remonstrations of His Lordship Justice Collin
Williams at the close of the January assizes on the 13th of March, 2024, which 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 inexcusable delays in the criminal justice system
and the need for improvement. We note, as has been recognized by Justice Williams, that the
cause of these delays is multi-faceted.
For an evaluation of the system, it is necessary to take at least a brief look at the process(es)
that the Honourable Judge was referencing. A serious, or what is called ‘indictable’, offence
begins with the stage of investigation by the police, then there is a charge, then the police must
get the case file to a state of readiness to go before the court, then the case goes before the
Magistrates court for what is called a ‘preliminary inquiry’. Thereafter, if there is sufficient
evidence, the matter is ‘committed’ to the High Court for a full trial. The preliminary inquiry
typically takes the form of a hearing, where the prosecutor (most times a police prosecutor,
sometimes a State attorney depending on the seriousness of the alleged crime) must disclose all
evidence to the accused in advance, then at the hearing presents oral evidence through
witnesses, who may be cross-examined. Alternatively, the case may be presented to the
Magistrate by way of ‘paper committal’, where written witness statements and other
documents and evidence are placed before the Magistrate for determination as to whether
there is sufficient evidence to go to a full trial at the High Court. The latter is quicker, but its use
had been paused for some time and, though presently used, is not used with frequency.
Charges in relation to offences of a less serious nature, or ‘summary’ matters are tried in the
Magistrate’s Court and do not go to the High Court or have a preliminary inquiry.
We are 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.
While of course one could state that some delay is caused by Magistrates and also lawyers, the
Bar Association 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. But to accomplish this the prosecution
of cases must be given the priority of resource allocation, dedication and work ethic that it
requires.
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.
The Bar Association recognises all current attempts being made to address the shortfalls in the
criminal justice system and, just this month, it was invited by the Ministry of Legal Affairs to take
part in sessions hosted by the Partnership of the Caribbean and European Union on Justice
(Pace Justice) Project, to discuss a working plan for the reform of the criminal justice system. All
relevant Offices within the criminal justice system were at or represented at these sessions, and
the Dominica Bar Association looks forward to the implementation of the several proposals and
plans emanating from these sessions.
In the meantime, there are several actions that may be immediately implemented to make a
difference to the system. Some of these were highlighted by Justice Williams, and the Bar
Association recognises that we all have a part to play. Our recommendations are as follows:
(i) Training for and allocation of more resources to, the more frequent use of paper
committals (Ministry of National Security and Legal Affairs)
(ii) The appointment of more Magistrates, and the streamlining of Magistrates ?(courts)
for criminal matters (Ministry of National Security and Legal Affairs)
(iii) A re-focus, where required, by investigators, prosecutors, Magistrates and lawyers,
to making a concerted effort to pursue matters with diligence
(iv) The stricter use of available sanctions and repercussions for untimely prosecution of
cases and unreasonable delays/absenteeism of Defence Counsel. These would
include:
a. the striking out of cases by Magistrates where there are persistent failures on
the part of investigating officers/police prosecutors,
b. the taking of disciplinary measures being taken against incompetent and/or
inefficient such investigating officers/police prosecutors by their relevant
commanding officers,
c. stricter application of the requirements for request for adjournment by Defence
Counsel.
(v) Exerting of persistent pressure on the relevant authorities, by victims, accused
persons, families of victims and accused persons, as well as the general public, for
the diligent prosecution of cases.
We end by echoing the words of Justice Williams, 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.
………………………………………………………..
Noelize N. Knight Didier
President, Dominica Bar Association
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
victim 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.
It is important to note, further, that unreasonab
