Top judge says criticisms won’t help crime fight

| 19/10/2011

(CNS): The Cayman Islands chief justice has warned that the country’s sense of security won’t be regained by one arm of law enforcement criticising another. In a letter to the press addressing recent public comments criticising judicial decisions in criminal cases, the islands' top judge has said that the rhetoric about the acquittals is not only misguided but potentially harmful as it could invite a loss of confidence in the administration of justice. Although the chief justice said the majority of responses in the media have described the comments as inappropriate, the wider debate called for a response from the judiciary.

“This letter offers what I trust will be accepted as an appropriate response,” Anthony Smellie writes in his letter to the editor, posted below in full. “Confronted by the current unprecedented wave of armed violence, it is entirely natural that everyone will be concerned for the loss of our common sense of security … Our common security will not, however, be regained by futile and misguided attempts to deflect blame away from one arm of law enforcement to another.”

Although the chief justice does not refer directly to the police commissioner, who has publicly criticised the decision of a visiting judge to acquit Devon Anglin for the murder of 4-year-old Jeremiah Barnes, he warns of the dangers of the comments and their impact on future decisions made by the local judiciary that could lead the public to question whether those decisions only reflect the judges’ responses to the pressure of criticism.

Justice Smellie offers the public his reassurance that the judges and magistrates of the Cayman Islands will “remain faithful to their constitutional oaths of office, no matter what the criticisms and no matter what the consequences.”

He also pointed out that judges make decisions based on the law and evidence, and while they are not infallible they are “uniquely accountable”, unlike any other arm of government, through a hierarchical process of appeal which provides an extensive check and balance.

The senior judge said the judiciary requires and deserves the respect and trust of the people, as do other agencies involved in the “relentless struggle for law enforcement against those who would bring violence and anarchy into our midst.”

See full letter below.

Category: Crime

Comments (49)

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  1. Anonymous says:

    I have complete faith in the judiciary to do a fair and proper job assessing the evidence gathered by the police and presented by the Crown.

    I also have complete faith that the police and Crown will xxxx up the jobs of gathering and presenting the evidence.

    What bugs me is to see the police try to heap the blame on the judiciary for their own shortfalls. I mean, if you xxxx up the evidence (or lose the evidence, can’t prove the chain of custody for the evidence, or forget the evidence at the crime scene when you go back to cruising for chicks…), then the judiciary HAS TO rule that “You have xxxxed up the evidence, and the accused must be acquitted because the Crown can’t prove its case on the basis of this xxxxed up evidence.”

    The solution is not to blame the judiciary. The solution is to NOT XXXX UP THE EVIDENCE!

    Maybe it’s just me…

  2. Mr West Bayer says:

    i think the chief justice is correct and baines should not be criticizing the crowns verdicts, i think the public needs to know that justice is not served by emotions but by evidence and law..So please eveyone shut the hell up. this is why a jury cannot be trusted, everyones mad when theres a murder acquittal but is sooo happy when CUC gets robbed. They should turn your damn power off for the night.

  3. Say what? says:

    Mr. CJ pardon me sir but the acquittals had more to do with the lost of confidence in the justice system that any rhetoric will ever have. You need to wake up sir and understand how decisions made in our courts effects our society.

    • Anonymous says:

      Indeed, the decisions made in our courts do reflect the society we live in. 

      A number of people have tried a judicial system that eschews acquittals and simply rubber stamps the prosecution case: Stalin, Hitler, Mao, Pol Pot…Which of those would you rather live under?

  4. Just Commentin' says:

    "…rhetoric about the acquittals…could invite a loss of confidence in the administration of justice".  Huh? Under what rock has the CJ been hiding? The "invitation" to that loss has long since been signed, sealed, delivered and RSVP'ed. The rhetoric of late only underscores a confidence that was lost ages ago.

     

    (Hint: Seeing a person of otherwise dignified office dressed like one of Cinderella's footmen at a Disneyworld side show ain't helpin' matters any either.)

     

    • Anonymous says:

      Just Commentin…….This shows how much you understand the present, past and also the roots and origins of our legal system, which is steeped in antiquity and has proven itself over the many and varied  tests of time.

      Checks and balances are also provided by way of appeal. Itthere is any issue with a decision by the courts, then the CoP has a mechanism to use and that is called an Appeal by the Crown.

  5. Concerned commonwealth citizen says:

    If the Chief Justice felt so strongly about the comments of the Commissioner of Police why did he not bring him before the court and charge him for contempt instead of entering into the  public squabble and further invite a loss of confidence in the administration of justice.

    If he were not minded to so do, having a word in private with Commissioner may have been more instructive than going to the media.

    What was the purpsose of going to the press?

     

    Regards

    • Anonymous says:

      The Commissioner did not privately go to the Chief Justice and make his concerns known. He made a public and frankly somewhat irresponsible comment. It was therefore appropriate to make a public response.

      I am not sure I follow your reasoning. On the one hand you are advocating a very discreet response by the Chief Justice but on the other hand you are suggesting that the only appropriate alternative would be to charge the Commissioner for contempt? Did the Chief Justice say that he was guilty of contempt of court?     

    • Anonymous says:

      It was highly irregular and out of order for the CoP to publicly criticise the decisions and verdict of a judge…he has his job to do and they have theirs.

      His job is to investigate and charges criminal offenses, arrested and charged suspects are presumed to be innocent until PROVEN guilty beyond any reasonable doubt…that is the law under which the judiciary, police and civilian population must live and abide….

      Personal opinions do not come into the matter and the judge is the final arbitrator…that is the meaning of 'judge'.

      It is only appropriate for the Chief Justice to chastise the Commissioner of Police publicly, as the CoP's comments were aired publicly.

      The CoP needs to concentrate on his job because, by all accounts, he's not doing a very good one at the moment.

  6. Anonymous says:

    With all due respect how does sending an open letter to the press criticising others help the situation.  Why can't you take whoever it is out for a beer, have a chat and sort out your differences?   Of course in judgely terms that 'beer' may be a cosy conference room with six or seven people on each team, but serisouly its not that hard to sort out.  The letter, dictated, typed, corrected, re drafted, re-typed, spell checked, signed, copied and sent, probably would have taken longer than "two heineken's, and one for yourself barman".

  7. Anonymous says:

    The futures looking so bright I gotta wear shades yeah I gotta wear shades.

     

    Goes nice with the fab new hairstyle

  8. Anonymous says:

    I am just wondering out loud here and maybe someone with authority would offer advice on this matter.

    My question is: How does one make a complaint about a court ruling if one perceives that it is unjust. I am asking the question hypothetically here, and with due respect to the Court.

    I understand about appeals to a higher court etc – but what if for instance (and again this is hypothetical) a client of the court feels that evidence was ignored or misinterpreted, or that one's basic human rights were violated, then what body hears those complaints?

    I believe that the Complaints Commissioner that hears general complaints about Govt entities are themselves under the courts.

    I agree with paragraph 4 in the article above of which I am commenting and appreciate that the country needs to have full confidence in the justice system. This is what we have and we probably have one of the best justice systems in the region.

    But what if beyond all that, in a scenario where one still has the impression that a particular ruling was unjust – what body hears complaints?

    Suppose say the case is in the lower court? the grand court, or even the appeal court?

    How does one make a complaint?

    I am intending that this post show full respect to the courts and this is merely a question that a lot of people might appreciate knowing the answer.

    • Anonymous says:

      You seem to already have the answer: appeal to a higher court (Court of Appeal, Privy Council) and ultimately petition the European Court of Justice on human rights issues. That is what appeals are for. If evidence is ignored that is a good ground of appeal. If, as in the case of former Madam Justice Levers, there is evidence of judicial misbehaviour then a complaint is made to the Governor who may refer it on to the Judicial and Legal Services Commission for investigation (see s.96 of the Constitition).  

       

      Of course in any litigation the party that loses feels that justice was not served. That's life.  

      • Anonymous says:

        If you can afford it!

      • Anonymous says:

        I am the poster that you replied to. Thank you for your answer which clearly explains the procedures – although I expected a reply along those lines.

        However the issue with these remedies are that they exclude about 90 percent of the population.

        Only the very poor and I believe the criminal element, can receive legal aid to implement those procedures. As we all know, only the very rich can afford to pay the legal expenses involved in appeal cases to the Grand Court, the Court of Appeal, and the Privy Council.

        The majority of people in this country are middle class, hard working and honest people, or at least one of the three. They simply do not have the resources to afford these expensive options. This leads me to believe that people in this majority group therefore have no real option to have justice in the following areas:

        If a ruling is made , either by facts of the case being left out or ignored,  or misinterpreted, or even by an attorney twisting the facts to reflect and convince the court that something is true when it is untrue.

        I believe that Judicial misbehavior is indeed a very rare occurrance and I believe that we are blessed in Cayman with Judges thatare Honourable and all have integrity, and are qualified to make decisions in relation to the law.

        Yet the possibility remains that mistakes based on the facts of the particular case can occur and that would not qualify as judicial misbehavior, and the remedies are unaffordable to the person who perceives that the result in unjust.

        I therefore believe that the general population who cannot afford expensive appeals should have an avenue to express what they perceive as an injusticeby the judicial system to a body such as the complaints commissioner for example.

        So to rephrase my question: To whom does the average hard working and honest person complain about court rulings that they perceive are unjust because of mistake, misrepresentation, exclusion, gender favouritism, or a violation of a basic human right?

        Again I post this hypothetical and intending no disrespect to either the legal or judicial system.

         

        • Anonymous says:

          At first I thought your argument was that there were no effective means of redress in the Cayman legal system if you perceived injustice in a ruling or judgement. However, now your argument appears to be that wealthier people have better access to justice or at least to a favourable judgement. If so then that is true all over the world, not just in Cayman. 

           

          I don't think that it would be feasible to have a body set up to hear complaints of injustice outside of the appeals process as it would no doubt be inundated with frivolous complaints, and further I do not see how it could be conferred a status superior to the courts which are a fundamental organ of the Constitution. What would happen if such a body makes a finding that a court's ruling was unjust while the decision is upheld on appeal to a superior court? Sounds like a recipe for utter chaos.      

          • Annoymous says:

            A body set up to hear complaints would not obviously have superior power over the courts, but the findings could be referred to the Chief Justice who would make a decision as to the merit of the findings and act accordingly, or reprimand accordingly or even advise accordingly.

            Had this system been in place it might have avoided the recent removal of a judge, or assisted in an earlier removal depending on the circumstances.

            We definitely need to have full confidence in the justice system and I believe that a board that accepted legitimate complaints from clients of the court, would not only strengthen the justice system, but would also increase the confidence of the public.

            But I am just a non legal observer agreeing that we need to have full confidence in the justice system, and am wondering out loud what could be done to strengthen public confidence.

            Thanks for your answers though.

            • Anonymous says:

              It seems that you are developing this idea as you go along. However, I appeciate that as a lay person who may not understand how the system works and why what you are proposing would not work.  I have a couple of observations:

              1. You mention that your complaints body may have avoided the recent removal of a judge but you don't appear to have the full facts about the matter.  The removal of Madame Justice Levers was initiated by complaints being made directly to the Chief Justice. The Chief Justice then wrote a memo to the learned judge warning her about certain conduct. When that failed to achieve the desired results the Chief Justice referred the matter to the Governor who referred it on to the Tribunal. The role played by the Tribunal has been replaced by the Judicial and Legal Services Commission that I referred to in my first post. In other words there is no reason to believe that the interposition of a complaints body would have affected the outcome at all.

              2. If such a complaints body is not superior to the courts then evidently it has no power to remedy any supposed injustice in a particular case outside of the appeal process which was your original argument. Certainly the Chief Justice would not have the power to alter a judgement or ruling of another judge even if he found that it was unjust because he does not act as an appeal court from other judges of the Grand Court.  

              While it appears that it would give you some satisfaction it seems that the complaints body you propose would supply only an additonal layer of bureaucracy.      

  9. Anonymous says:

    He is entitled to think the judiciary is a model of perfection, and we are entitled to think that it is not.  At the end of the day even the judiciary has to follow the will of hte people. The people are the source of the law. Or at least they are supposed to be.  If the people think that sentencing is too lenient, which most do, then sentences will eventually be longer and harsher  no matter what some members of the judiciary think.

    • Anonymous says:

      Judges do notfollow the will of the people.  This is not a witch hunt or public hanging.  They have probably one of the toughest jobs in the world.  Just because crime is getting crazy, we can't just put people away without proper evidence.

      • Anonymous says:

        If the judges don't give long enough sentences, the people will elect representatives who will change the law and remove the judges discretion to give light punishment. QED.

        • Anonymous says:

          What you say is correct but only serves to show that Judges follow the law and not the will of the people. If the law doesn't change the will of the people is irrelevant to his judgement. This can be a very good thing since the will of the people is not always just and right.   

  10. Anonymous says:

    Thank you, CJ Smellie.

    I hope Commish Bean is paying attention and focuses on leading the RCIP instead of playing pseudo-politician.

     

  11. Anonymous says:

    Instead of commenting on what the judge believes not to be beneficial to restore the confidence of the public in the judicial system, I wished he would have stated how the judicial system can be improved and what glitches need to be prevented going forward and what part the judge and his colleagues can play in all of this.

    He is just doing what he doesn't want everyone else to do – pointing fingers at others.

    Until all parts of the judicial system are prepared to take a step back and look at their system and performance and strive towards improvement nothing will change.

    Let's start with trying to figure out how come it takes so long in Cayman to get a trial started and finished?

     

  12. Whodatis says:

    Sorry Chief Justice, but in my opinion the entire British / EU / Overseas Territories judiciary as a collective ought to be ashamed of where we stand now in regards to "justice" – especially as it relates to serious crime.

    The recently reported intentions and legal justifications for appeal action connected to the brutal and untimely fate of one of our beautiful and inspiring Caymanian sisters is but one fine example.

    Your words are lost on me Chief Justice.

    Humanity and its natural "reflex action" to certain situations trumps any reasoning forwarded via a bunch of "educated" grown men (and women) playing dress-up on any given day.

    * Kindly remember, you guys are not "God" or supreme. You are mere fellow human beings trying in vain to apply mathematical, logical and scientific explanations to this incalculable force known as life.

  13. Anonymous says:

    Some recent decisions of the courts has given the general public reasons for concern. 

  14. Dadapoo says:

    Absolutely right Chief Justice Smellie the Police has cast the blame on every single soul living on this island for their failures and incompetence and if they aint blaming someone or something they always have some excuse. Case inpoint todays Caymanian Compass Loss of video tape evidence who are they going to blame today?. They have hired so many foreign experts to fix "our  problems" Yet it obvious that it  aint fixed , that could leads me to only one conclusion, there was never a problem to  fix and the only problem we have  is them. When we had less experts in the police it same certainly more efficient But of course now we have this enormous intelligently aggressive foreign police service overlookng us from the strategic heights of their colour coded now massive high command. This would appear CJ to have been the plan all along SIr!

  15. Anonymous says:

    Can we now have a commissioner who went to law school? I think Brougham or Jones will do fine and would continue to be keen.

  16. Anonymous says:

    Only if our representatives would read this and get on with the country's business, and stop pit-bulling one another- disgracing our country.

  17. Anonymous says:

    Baines are you listening?

  18. Anonymous says:

    Quite a sanctimonious letter from the CJ. I commend Ms Ezzmie Smith and her bold letter in the Compass which reminded the public that every member of the public, including the Commissioner of Police is entitled to an opinion. A healthy society needs debate, questions and the wisdom to be challenged. What is unhealthy is an attitude held by some in certain quarters and arguably manifested in the CJ's letter whereby arguments are settled by pulling rank. One is left wondering why the CJ or Mr Alberga have not spoken out more frequently and more vociferously on some of the issues that have adversely affected the proper administration of justice in Cayman through the years. Justice will prove to be an elusive concept so long as a political party and its elected representatives see it fit to sit in a public gallery while one of their colleagues sits in the dock.

  19. Anonymous says:

    Grown men and women playing dress-up in silly wigs and archaic costumes do not give me much confidence in the legal system.

    • noname says:

      And what country's (doubtless superior) legal system do you advocate?

      • Anonymous says:

        I note that, despite the ill-observed criticisms above, this question remains unanswered. 

        The reality is that you can have the silly wigs system, the European inquisitorial system, the American system or some sort of show trial set up.  If you seriously claim that any of the other three are better then you are even more poorly-informed than your comments above suggest.

        • Anonymous says:

          It would really help if they would impose sentences on the long end of their discretion rather tha the short.  It's the least they can do.

    • Just Commentin' says:

      THUMBS UP! I am so happy to hear that someone else has that opinion!

      But then again perhaps, this being late October and all, the CJ is getting with the spirit of the season and is showing off his neat Trick-or-Treat costume a bit early. It really is a dandy outfit, but I think a pair of 1980's Elton John shades would match the ensemble better.

    • Knot S Smart says:

      ok Mr. Court Jester. I suggest that you be careful what you say – before you are found in contempt of court and have to appear before what you describe as people with 'silly wigs'.

  20. Anonymous says:

    "…a loss of confidence in the administration of justice…"

     

    A loss of confidence? I didn't know we had any confidence to lose.

  21. Respectfully says:

    I wonder if the Chief Justice would explain to the public why it is that trial by judge is so common here in these islands, when it is literally unheard of in the UK. We seemed to be doing just fine with serious cases prior to the introduction of this practice. I personally feel that it is not in the spirit of a proper trial which is supposed to be decided by a jury of peers and in my opinion a defendant would have to make a very strong argument to convince me that it was necessary. If you go out and commit crimes amongst your peers it is only fitting that they decide your guilt and ultimately your fate. I also would like to inform the Chief Justice that public confidence in the court system is already at an all time low.

     

    • Anonymous says:

      The problem is that you can’t find enough people to assemble a functioning jury here. Everyone’s related to everyone, or married to their cousin, or they used to be lovers, or they had an affair, or they are afraid of their family or political connections… then they acquit the guilty and you complain and Cayman goes to hell.

      • Anonymous says:

        I question the method of selection. There are many people who have never been called for jury duty and some who have been multiple times.

    • Anonymous says:

      Huh? Ever heard of "Diplock courts"? It was the UK who introduced the concept of judge alone trials as COMPULSORY for certain (terrrorist) cases. What we have here is an OPTION that a DEFENDANT may exercise as to whether he/she wants to be tried by a jury or judge sitting alone. Sometimes the latter is advantageous to the defendant. We do need to follow the UK's example and make it complulsory for certain cases, e.g. cases involving any politician currently in office where the jury may be biassed either for or against a conviction. There have been some recent jury verdicts which are highly questionable.  If there is any lack of confidence in the court system it involves those.      

  22. Anonymous says:

    If you look closely you can tell that's a wig,