CELEBRATING THE PAST,
EMBRACING THE FUTURE: The Eastern Caribbean Supreme Court at Fifty, 1967-2017
By Justice Don
Mitchell (Ret)
Introduction
In
this presentation, I shall take a very personal, indeed, idiosyncratic, look at
the history of the legal profession in our jurisdiction of the ECSC, and the
challenges facing our twin professions of lawyer and judge. I shall start with an examination of what it
once took to become a Caribbean lawyer, and briefly compare the historical
process with how it is done now. And
then, I shall look at how the technology of the practice of law and of the
judicial process has changed in the Organisation of Eastern Caribbean States (OECS)
sub-region over the past fifty years.
When I began my professional practice as a
young and callow lawyer in Basseterre in September 1971, I did my own typing on
a portable Olivetti typewriter. I did a
touch-typing course after I graduated from law school, as I knew it would be
years before I could afford to pay a proper typist to help me. So, I prepared to do it all myself. Many young lawyers today face the same
challenges, but the work environment has completely changed. In my day, the equipment necessary for the
practice of law had hardly progressed beyond that of the 18th Century. The only items in my Chambers that James Boswell would not have recognised
were my manual typewriter, sheets of carbon paper, and Bic ballpoint pens.
A
Legal Education
I
was called to the Bar in London in June 1971, as thousands of West Indian Barristers
had for 300 years before me. There was,
at that time, neither a Cave Hill Campus nor any Sir Hugh Wooding Law School that
I could go to. There was no point in my getting
a US or a Canadian law degree, as those qualifications were unrecognised, in
the sense of allowing me to practise law back home. The only legal education accepted in the
islands was a UK one.
If you were a brilliant student you might win
a scholarship to Oxford or Cambridge University. Otherwise, you might stay home and do an
external degree at London University. Or,
if your family could afford it, you could privately attend a UK university, or
the Inns of Court School of Law, and be called to the Bar of England and Wales,
before you came back to practise law in the OECS. That is what I did, with the help of a
scholarship from my father’s employer, Tate & Lyle Ltd.
I have often been asked, why was a law school
called an “Inn of Court”? As with so
many things in the law, the name is a matter of history. In the earliest period of English legal
education, say from about 1100 to about 1300, the way a young, would-be lawyer
got qualified was by following the Judge around while he was doing a Circuit of
the towns in the County, and listening and learning as he heard cases and
settled disputes. The student would
attend court and take notes of the legal issues and the Judge’s rulings. During the evenings, the students gathered
around the Judge at dinner at the same hotel, or inn, where the Judge was
staying. They asked him questions about
the disputes he had settled that day, and they took notes. This being an inn, they drank a lot of wine.
How did a lawyer’s qualification to practise
law come to be known as a “call to the bar”?
The Judge would arrive in a town where his Commission from the King
authorised him to sit and to do justice.
His Commission would be read out aloud by the Town Crier, and
petitioners for justice would begin to gather.
A corner of the market hall would be cleared of traders, and new straw
thrown down on the floor so the Judge would not dirty his shoes. A bench and a table would be set up for him
to hear the suits brought by the town’s citizens. Early English judges really did sit on a simple
bench in a market hall. A plain wooden
barrier would be erected across the floor of the hall to keep the pigs and
sheep, which typically shared market hall space with their traders, away from
the Judge. The litigants who had paid a
fee to a court official to draft their claim or defence would throng around
waiting for their case to be called. And,
the students would be present ready to take notes. Only the bar kept them from jostling the Judge.
When a case was called, the Judge might ask
the litigant or accused person if he had a lawyer. If he indicated he did not, and the Judge
thought he needed one, he would look around the hall. If there was no willing advocate available, or
the litigant could not afford one, and the Judge saw a student of his who he
thought was sufficiently advanced in his studies, and could help the accused,
he might call on him to approach the bar, and he would ask him to assist. This process amounted to recognition that the
student was now accepted by the Judge as worthy of addressing the Court on a
case. The student was then said to have been
“called to the Bar”.
By the 15th Century, there were established
in London around the city’s civil courts several Inns of Court, housing
students, lawyers and judges. Eventually,
they were whittled down to four: Grey’s
Inn and Lincoln’s Inn, the Inner Temple and the Middle Temple. And, why would a law school be called a
“Temple”? They were so-called since they
were established in the properties originally owned by the ancient religious Order
of the Knights Templar. After the
abolition of the Order in 1312, lawyers came to occupy the Temple buildings. They formed themselves into two societies,
the Inner Temple and Middle Temple, first mentioned by name in a manuscript
yearbook of 1388. Their Charter as law
colleges was signed by King James I
in 1608.
As Anthony
Wagner wrote,[1]
the Inns of Court
became in effect the third
university of England, to which the nobility and gentry sent their sons to
acquire knowledge of the world and of a subject then as useful as any for the
management of property and the pursuit of worldly and political ambitions.
The
Inns of Court were thus, though not given a charter as a university, the third oldest
law school, after Oxford (1096) and Cambridge (1209). The Inns were organised on the same basis as
the colleges at Oxford and Cambridge, offering accommodation to practitioners
of the law and their students, and facilities for education and dining. Professional law exams were introduced at
the Inns for the first time only in the year 1853.
Up to the time I qualified as a Barrister,
you could not be called to the Bar unless you had dined the requisite number of
a dozen times at your Inn. Passing your
examinations was not sufficient for you to graduate. The dinners were compulsory, and were a
reminder of the early history of legal education.
In the year 1674, the Leeward Islands Colony consisting
of Antigua, St Kitts, Nevis and Montserrat[2] got its
first federal style legislature with a General Assembly made up of two planter
and merchant representatives from each of the member islands. It met regularly until 1711. By the time of the General Assembly of the
Leeward Islands in 1705, several of the representatives had been called to the
Bar in England. They set about
establishing a system of law familiar to them for their islands’ governance. One of the first Acts they passed was to
declare the common law of England part of the law of the Leeward Islands.[3] From that time on in our islands, Barristers
have always done all the legal work done in England up to the reforms of 1875
by Barristers, Proctors, Attorneys, and Solicitors.[4] So it was that, when I was called to the Bar
in St Kitts in 1971, I was admitted as a ‘Barrister and Solicitor of the West
Indies Associated States Supreme Court’.
This was the court that was established by the Supreme Court Order
of 1967, and which is still our court, though renamed the Eastern Caribbean
Supreme Court.
The English came to separate the work of
Barristers and Solicitors long after we in the Eastern Caribbean had adopted
the common law, and our courts came to recognise English qualifications. As with the United States of America, most of
our islands never adopted the system of the two separate legal professions of
Barrister and Solicitor.
An OECS law student could until recently, in
theory, go to England and study to be a Solicitor rather than a Barrister. However, when I was a law student, a student
Solicitor, called an ‘Articled Clerk’, had to have family and other connections
to join a firm of Solicitors in England.
Few West Indians had that advantage.
Also, a Solicitor’s education, including passing the examinations set by
the Law Society, lasted for a minimum of five years, compared to the three
years typically required to be called to the Bar. Very few Eastern Caribbean lawyers, mainly some
from Trinidad and Jamaica, took the longer route of studying to become a
Solicitor.
I went from Trinidad to the UK in 1964 to
complete my “O-Levels”, and to do my “A-Levels”, as my High School did not
offer A-Levels. Once I got my A-Levels, I
was qualified to apply for admittance to an Inn and to study for the Bar. I joined a Jamaican school friend, who was also
planning to study law and come back to the West Indies, in gaining admittance
to the Inner Temple in London in the year 1967.
I was called to the Bar of England and Wales in 1971. The system of education at the Inns of Court
was a thorough one. It involved
attending lectures given by law professors during the day,[5] and
tutorials by practising barristers in the evening, followed by exams at the end
of the year. There were among us a few students
who spent as little as one year at the Inns of Court School of Law. They had first obtained a university bachelor
of laws degree, and were required to do only a shortened, crash course at an the
School of Law to be qualified to be called to the Bar.
For centuries, only Oxford and Cambridge
Universities provided the LLB degree.
Everyone in the Eastern Caribbean who wanted to be a Barrister, and was
like me not bright enough to win a scholarship, or rich enough to privately
attend Oxford or Cambridge University, had to join an Inn and attend the Inns
of Court School of Law for a legal education, lasting a minimum of three years,
plus eating the requisite number of dinners.
With a degree, you were only required to do the final year at the Inns
of Court School of Law, plus eat the requisite number of twelve dinners.
London University was founded in 1836, and is
the third oldest university in England.[6] What was remarkable about this university was
that from as early as the year 1858 it allowed students to do the LLB course
externally. By the early 20th Century, the
first wave of redbrick Universities, such as Liverpool and Birmingham, began to
offer law as a degree course. Warwick
University and several others were chartered in the late 20th Century, and also
offer the LLB degree. Today, there are
dozens of institutions offering the LLB degree, and many West Indians have
taken up the opportunity to study for the LLB at them.
But, London University was different. From the earliest period, you could stay at
home in Grenada or Antigua, and do most of the course by mail, going to the UK
only for a few months to sit your final exams.
For many West Indians who could not afford to spend years in the UK
attending a full-time course of studies, that was a godsend. Clearly it was much more affordable to have
to spend only a few months away in London than to have to spend the entire
three years. It may have taken a little
longer that way, maybe four or five years to get the degree, and then another
year or so in London to be called to the Bar, but it was affordable. In those early days, once you were called to
the English Bar, you were automatically qualified to be called to the Bar anywhere
in the Eastern Caribbean.
When you passed your final exams at the Inns
of Court School of Law, you obtained what was called the “Degree of the Utter
Bar”. In a magnificent ceremony held in
the Great Hall of your Inn, after eating good food and drinking much wine, you
were presented with your Certificate of Call to the Bar, which signified that
you had successfully passed your exams and were now qualified to practise at
the Bar of the courts of England and Wales.
The system of Caribbean legal education I
have described has all now passed into history.
Every OECS law student in England today is required to first obtain a bachelor’s
of law degree from a university, and then attend the requisite professional
training course for one year. Since 2008,
the Inns of Court no longer provide a legal education in England.[7] But, you still have to join an Inn, and only
your Inn can call you to the Bar of England and Wales. And, you have to complete 12 of what are now
called ‘qualifying sessions’ in order to be called to the Bar. Qualifying sessions take a number of
forms. Yes, they still include attending
dinners at your Inn. But you can, alternatively,
attend special education days, or attendance at weekends, either at your Inn or
at a residential centre, such as Cumberland Lodge, which are convenient methods
for out-of-London students.[8]
Since the mid-1970s, the University of the
West Indies and the various law schools associated with it now provide a much
less expensive and much more relevant legal education for the vast majority of OECS
law students. In some of our islands,
particularly the British Overseas Territories, a British legal education is not
only acceptable, but is for many of us, because of UWI’s restricted quota
system, the only practical way to become legally qualified. With a British legal qualification, an OECS
law student who wishes to practise law at home needs only do a shortened
Conversion Course at one of our Law Schools.
Additionally, as part of a reciprocal arrangement, certain US and
Canadian qualifications are now recognised, and lawyers with those
qualifications may be admitted to practise law in the OECS after attending a Conversion
Course.
The
Practice of Law
In
the decade of the 1960s, we West Indians were just beginning to emerge from the
pre-constitution paradigm of the practice of law. That paradigm rested on the principle that
the courts do not have the jurisdiction to question the validity of an Act of Parliament. Only the House of Assembly could amend or set
aside a statute. A judge’s role was to
interpret it and apply it. Then,
commencing in the year 1961, Jamaica, Trinidad and Barbados adopted
independence Constitutions which proclaimed the supremacy of the
Constitution. It took the 1970 trade’s
union case of Collymore v A-G[9] from
Trinidad to establish that parliament’s laws are subject to the Constitution of
a Commonwealth Caribbean Country, and the role of the Supreme Court is to be
the guardian of the Constitution. It
took the 1977 gun court case of Hinds v R[10] to
finally put to rest any lingering doubts caused by any real or perceived
limitations of the Collymore judgment on the question of the supremacy
of Commonwealth Caribbean Constitutions.
How far have we moved since those early days! Today, it is routinely and universally
accepted that the Supreme Court can amend or set aside a statute, if it finds
that the words of the statute are in conflict with a provision of the
Constitution. Constitutional and
administrative law issues now take up large chunks of court time. And, with our societies becoming ever more litigious,
our courts are being called on to deal with more complex and difficult issues
than our predecessors, engaged as they were in running-down cases and larceny
prosecutions, could ever have imagined.
When I began to practise, society was much
less litigious than it is today. For
most of our citizens the law lay in the background of people’s lives and
society. Once we paid our debts, stayed
out of jail, and kept as far from the law courts as possible, we would be all
right. Now, as Canadian Chief Justice Beverley McLachlin has put it,[11] law
permeates every facet of our society. Criminal
Codes have amplified the old offences, and created a host of new ones, from
drugs trafficking to money laundering.
Since the negligence principle was defined in Donoghue v Stevenson,[12] the law
of tort has broadened enormously. The
law of contract has expanded to impose liability for non-economic, intangible
losses. The regulatory state has brought
a host of rules, regulations and statutory tribunals into every aspect of
economic and social life, all requiring supervision by the courts. Since the 1970s, our courts have been called
on to recognise and protect the basic liberties inherent in each individual: freedom of speech; freedom of religion; freedom of movement; and freedom from discrimination, among others. Constitutional and human rights cases now
play a larger role in using court time than ever before.
The Courts
The
result of this rising tide of litigation is that courts now find themselves
more and more involved in issues that touch and shape our responsibilities to
each other. More and more, Judges matter;
and more and more, as McLachlin CJ notes,
Judges are scrutinised and criticised. Add
to that the technological revolution, and the demographic and social pressures
caused by our increasingly mobile and ethnically and religiously diverse
populations, and the stresses on our societies that our courts are increasingly
being called on to deal with, continue to grow.
If our judiciary is to maintain the respect
of our societies, the traditional judicial qualities of impartiality,
independence and integrity will need to be maintained and strengthened, and new
practices will have to be adopted. The
modern West Indian Judge will increasingly be called on to adapt old principles
to modern realities.
Judicial impartiality will increasingly be
challenged by the modern ethic of corporate market-place efficiency. Judges will be called on to ‘practise
management reforms’; show ‘more effective use of resources’; be ‘more
responsive to the needs of society’; and, more accountable for their
actions. We will be asked about our ‘performance
results’ and be subject to ‘program-based budgeting systems’, all imposing a
greater risk of political direction.
Seventeen years ago, in the first Special
Sitting of the Court of Appeal to receive an address by a Chief Justice marking
the opening of the new law year,[13] Sir Dennis Byron introduced us to his
judicial reform programme. This
included,
·
the start of the backlog reduction exercise;[14]
·
the publishing of the court’s website;
·
the shortly to be introduced new Civil
Procedure Rules;
·
the introduction of case management, whereby
the progress of cases would be transformed from lawyer-driven to a court-driven
process.
·
Prominent in this address was the news that
the court had hired its first ‘Information Technology Manager’.
In his address two years later,[15] Sir Dennis described the beginning of the
main features of our present-day court system.
These included,
·
the wiring of our courthouses, some dating
back to the 18th Century, to facilitate the use of computers by the court and
lawyers;
·
the air-conditioning and general modernising
of our courtrooms;
·
the introduction of a new selection process for
the appointment of our Judges by the Judicial and Legal Services Commission based
on principles of transparency, competition and merit;
·
CPR 2000 had
come into effect, replacing the old Rules of the Supreme Court;
·
the backlog reduction programme had disposed
of a vast number of ancient cases, and the backlog was considerably reduced;
·
the case management software package, JEMS,
had been introduced into the ECSC headquarters and was being deployed
throughout all the courts of the region;
·
court managed mediation was about to be
introduced in the courts of the region to assist in the disposal of cases which
were suitable for this process;
·
audio recording had been introduced in St
Lucia and Dominica and was due to be introduced in all the islands, as Computer
Aided Transcription Reporters from around the region began to be trained at the
College in Tortola;
·
the programme to regionalise the magistracy
had begun;
·
formal legal aid programmes were being
promoted in all the islands;
·
the Judicial Education Institute housed at
the ECSC headquarters in St Lucia had become increasingly visible and
productive through a number of programmes held in the previous law year. There had for the first time been workshops
for Judges, Magistrates and Registrars on such varied matters as money laundering;
telecommunications law; sentencing; orientation for new Judges, masters and
magistrates; and
·
training of mediators throughout the region
was in progress.
Since then, further improvements and
innovations have been introduced by subsequent Chief Justices. These include,
·
An enormous growth in personnel. While the ECSC headquarters in the year 2000
employed a total of 6 professional staff, being 4 Court of Appeal Judges, a
Chief Registrar and a Librarian, assisted by 7 support staff, now there are 26
professional staff. There are now 6,
instead of 4, Court of Appeal Judges, and 20, instead of 2, professionals. One third of the professionals at
headquarters are lawyers, including 5 Judicial Research Assistants. The number of support staff has grown from 7
to 19;
·
A professional statistician now collects and
publishes statistics on the work of all the courts of the sub-region;
·
All courts were supplied with computers,
scanners, printers and ancillary equipment, including the appropriate software
to enable office automation facilities and tools for the most modern techniques
in case management;
·
Every Judge and Registrar was supplied with a
laptop computer with the capacity for linkage to the court office network;
·
The increased administrative capacity has enabled
headquarters to provide technical assistance to all court offices throughout
the sub-region. The growth in human and
technical resources over the past eighteen years has necessarily impacted the
budget, which tripled in size from EC$5 to over $18 million;
·
The research capabilities of Judges and Registrars
were strengthened through the use of QUICKLAW and LEXIX-NEXIS;
·
The court website began to publish all
judgments given by our courts, newsletters, and other information on the court
system, in a cost-efficient manner and free to users;
·
Practice Directions, copies of which are
available on the court website, began to be published, playing a vital role in
clarifying various rules and enhancing the more accurate use of procedure;
·
It became standard procedure for court lists
to be automatically generated by JEMS and circulated to all lawyers by email;
·
Court filings by email, pursuant to the two
relevant Practice Directions, has now started;
·
New Probate Rules have been drafted
and circulated to the Bar Associations for comments, which when published will
harmonize the procedure across the jurisdiction;
·
Additional specialist divisions of the court,
with their own Rules and Practice Directions, have been created, that is, a
Criminal Division, a Commercial Division, and soon to be a Family Division,
each with power to manage cases and with a view to more efficiently handling
the increasing volume of work;
·
All-year criminal sittings, running in tandem
with the civil sittings, have been introduced in all but the smaller States and
Territories of the OECS, resulting in a reduction of the backlog in criminal
cases which had plagued our criminal justice system for decades;
·
Court-administered mediation on a voluntary
basis in civil disputes was now widespread throughout the sub-region; and, we are now considering making mediation
mandatory in all civil cases, and introducing mediation in relation to less
serious criminal cases;
·
Video Link facilities were installed at the
High Courts and the ECSC Headquarters during 2010-2011; the facility has been in operation and
facilitates case management, Chamber Hearings, and several Court of Appeal
sittings between headquarters and the member States since then, with
considerable savings in the expense of travelling, and a speeding up of
hearings which can now be disposed of outside of regularly scheduled sittings;
·
With the enormous increase of litigation over
the past 50 years, the demand for appellate services has increased to the
extent that the Court of Appeal now routinely holds two separate sittings
simultaneously;
·
A list of trained and court-approved
transcriptionists in most jurisdictions has been circulated to lawyers for
their use; and transcripts of the day’s evidence are now prepared in as little
as 24 hours.
·
The hearing of evidence by video-link in
criminal cases in St Lucia and St Vincent is now governed by a Practice Direction;
·
Last year, 2016, saw Antigua and Barbuda use
the Evidence (Special Provisions) Act 2009. For the first time a live video feed from a
witness outside the State was used in a criminal trial in the High Court. As the use of this technology spreads, all of
our member States and Territories will in due course adopt this procedure so as
to enjoy this improved level of efficiency and cost saving. The advantages to our people are that,
·
There will be a tremendous saving in costs,
and a more expeditious resolution of matters in court;
·
Non-essential witnesses, such as experts and
others who are not resident in the State, will not be required to spend time
and money travelling to and from court;
·
Police officers will be freed up for front-line
duties;
·
The number of adjournments will be reduced,
enabling the swifter disposal of cases;
·
Evidence can be taken from children and
vulnerable witnesses in a manner that is safe and non-threatening; and
·
Witnesses in correctional facilities will no
longer be required to be transported to the court at great cost and increased
security risk.
The Role of Information
Technology
The
Caribbean Court of Justice (CCJ) will increasingly in the coming years become
our final court, so it is worth looking at some of their I.T. that will soon
affect us. At the ECSC Court of Appeal and
the CCJ, Judges and lawyers now routinely work on their laptop or iPad in
court. Notes are made and cases referred
to are accessed online in real-time, while the court is listening to evidence
or addresses. At the end of the day,
certainly at the CCJ, lawyers and Judges on their way out of court are
presented with a printed transcript of the day’s proceedings.
The CCJ is presently implementing a bespoke
electronic court management software suit called Curia. Curia has three modules called Folio,
Attaché, and Sightlines. Folio is the name for their electronic
filing platform. Attaché is their case management system. And, Sightlines
is their performance management toolkit for Judges and administrators, providing
access to data and reports. In the ECSC,
we have our own version of these three software packages in the form of our
JEMS.
Earlier this year, Sir Dennis established the Curia
Register Project which is working on getting every Judge, Registrar,
Magistrate, Barrister, Solicitor, and Attorney-at-Law in the West Indies, from
Bermuda and Belize in the North to Suriname and Guyana in the South to become
registered participants in the CCJ database.
This database is not intended to replace similar OECS efforts, but may
well help: to reduce the burden on
Secretaries of our Bar Associations trying to keep track of membership; Registrars attempting to police the Legal
Profession Acts; and litigants searching for the right lawyer to represent
them.
I am convinced of the
benefits of the Curia system, and
have agreed to be named as the chair of the committee working on the project,
as a result of which you are all likely to be pestered by me in the coming
months to participate by submitting your personal and professional data to
enter into the Curia database. The benefits are many.
·
Once an attorney is registered, she will no
longer have to input personal and professional information when making an
e-filing;
·
It will automate the provision of personal
and professional information on lawyers, judges and case management officers;
·
It will monitor things like continuing legal
education, and even matters for the welfare of lawyers;
·
It will improve the system of requiring
lawyers to be of good standing and pay their annual dues;
·
It will automate the issuing of practice
certificates, and provide a transparent manner for the public to check on
practitioners;
·
It will assist our Registrars, who have to
calculate the number of years standing for each lawyer to be able to fix the scale
of fee payable annually; and
·
It will automatically show which lawyers have
professional indemnity insurance, something that litigants are clamouring for.
The
Future
As
I consider the changes that have taken place in the practice of law in the OECS
in the past 50 years, that we could, at the start of the period, never have
imagined were possible, I realise that any attempt to forecast what the
practice of law will be like after another 50 years lies in the realm of
science fiction. But, some things seem
obvious to me now.
In just a few years’ time, no lawyer will
employ a messenger to attend at the courthouse to file a paper claim or
defence; this will all be done automatically by accessing the Registry online. The court Registry will be replaced by the
cloud.
Already, most modern West Indian lawyers’
offices do not house a single textbook, unless it is for decorating the walls
in the conference room. In the modern
law firm, all legal research is now done online.
There
are things that lawyers have traditionally done that can be automated today. Artificial or Augmented Intelligence (A.I.) is
coming to the practice of law and the determination of disputes. There is no sense fighting it.[16] IBM’s Watson
is considered by many to be the most significant technology to come to law. According to a May 2016 release, ROSS, 'the world's first artificially
intelligent attorney' powered by Watson,
recently landed a position at New York law firm Baker & Hostetler handling the firm's bankruptcy practice.[17] Lawyers ask ROSS research questions in
natural language, just like they were talking to a colleague, and the A.I.
'reads' through the law, gathers evidence, draws inferences, and returns with a
'highly relevant', evidence-based answer.
The program gets smarter and continues to improve the more it is
used. It also keeps track of
developments in the legal system, especially if anything pertains to a lawyer's
specific case.
As A.I. becomes more efficient and pervasive,
most lawyer’s routine legal work, such as writing opinions and lawyers’
letters, and drafting contracts and wills, will be handled by software. Today in London and New York, if you feel you
have been wrongfully issued with a parking ticket, you can fill out a
questionnaire and hire the free on-line robot lawyer DoNotPay. It fires off a
letter contesting the citation. Has your
flight from Miami to Paris been delayed, and you want some compensation? DoNotPay
will draft the letter for you.[18] The 20-year old Stanford University student
who developed the application claims a success rate of 60% in the 200,000 cases
DoNotPay has handled in the last two
years.[19]
While systems like ROSS and DoNotPay are
unlikely to displace the reasoning processes of lawyers, there are very few
legal tasks that require a lawyer to apply ‘bespoke’ reasoning. More commonly, lawyers apply ‘proven’
approaches in slightly different contexts.
This is where bot-lawyers like ROSS
and DoNotPay will play an
increasingly important role. It may take
a little longer for A.I. to invade the judicial realm, but that will become
commonplace. There are many rulings the
judge is called upon to make that are routine, and for which the necessary
algorithms will soon be written. A ‘bot
judge’ will then be able to deliver an automated and instantaneous ruling. The result is that law will become more
accessible and transparent, as it should be.[20]
In time, there will be no requirement for
witnesses to go through the process of attending a trial in person. After all, we no longer accept trial by
battle as the only way to arrive at the truth.[21] Nor do we any longer accept that torture is
the natural way to obtain true evidence, at least most of us don’t.
In the years to come, the court will observe
a hologram, a three-dimensional representation of the witness sitting in the
witness box, broadcast electronically from the place where the witness is
located, and observe and listen to his or her hologram speaking, to determine
what the truth is. Sensors will inform
the Judge and lawyers immediately a witness is not being truthful. A transcript will be created in real-time,
and the whole process will be recorded for future use, e.g., on an appeal.
Advocacy will become entirely
electronic. Oral arguments are already
becoming a thing of the past. Legal
practitioners will have to rely on their filed submissions. At the conclusion of the trial, the Judge
will no longer sit in person and read the judgment aloud. Instead, the Judge will deliver the judgment
by posting it onto the court’s website, and move on to the next case before the
parties have even had the time to read it.
Today, I can sit in my office at home in
Anguilla, and access a streaming video of the English Supreme Court sitting in
real-time and hear and observe the argument in every appeal that the court is
dealing with, and the final judgment when it is given. The day will come when we will be able to do
the same thing for any trial in any court in the OECS.
Jury trials will become obsolete in criminal
cases as they have in civil ones. Lay
persons will sit with the Judge to assist in monitoring the sensors that help separate
truth from falsehood, while the Judge refers to the appropriate device that
informs him or her which rules are applicable.
In time, the courthouse itself will become a
thing of the past. When the judge will
no longer be required to sit in the same building as the lawyers, the parties,
or the witnesses, there will be no purpose served by having a dedicated structure
for the resolution of disputes.
As we develop a strong and robust e-system
for our judicial process, we will need to be sure we have secure firewalls and real-time
backup. There is no point having the
most up-to-date electronic justice system that a 20-year old student can hack
into, (and change all the amounts of damages awarded, while tinkering with the
lengths of prison sentences imposed). I.T.
technicians already need to constantly improve their skills or they risk
becoming obsolete five years after they graduate.[22] There is an argument that ‘the cloud’ will
soon render the I.T. department itself obsolete.[23]
We will need to make sure the key
consumers: judges, lawyers and
litigants, are confident in buying into the coming electronic justice
system. If this is successfully managed,
the likelihood is that in the years to come an entire court case will be
completed without any of the judge, lawyers, parties, or witnesses ever having
visited a courtroom, and without leaving any physical paper trail.[24] The technology exists today. The courthouses where we now work will be
converted to museums of law, where ancient artefacts such as books and pens,
and videos of the eminent lawyers of the past, eloquently holding forth, making
submissions in oral support of their client’s case, will be exhibited only to
excite the curiosity of schoolchildren.
A
presentation to mark the 50th Anniversary of the establishment of the Eastern
Caribbean Supreme Court, made at the Sandals Grande Hotel, Antigua, on Monday
27 February 2017.
[2] Anguilla and the Virgin Islands were not
represented, being too small to have their own Assemblies.
[3] It was initially entitled An Act for
Preventing Tedious and Chargeable Law Suits, and for Declaring the Rights of
Particular Tenants. In time, as most
of its provisions were repealed, leaving only section 2 remaining, it came to
be re-named The Common Law (Declaration of Reception) Act. This Act can still be found under that title
in any good collection of laws of any of the Leeward Islands.
[4] A Proctor practised in the Admiralty and
Ecclesiastical Courts, an Attorney in the common law courts, and a Solicitor in
the Courts of Equity. The Judicature
Acts, 1873-1875, of the United Kingdom Parliament, combined all three in
the common professional title of Solicitor.
[5] Lectures were then given in Lincoln’s Inn’s
Old Hall under Hogarth’s immense (10 feet by 14 feet) 1748 painting of “Paul
before Felix”.
[6] Durham University, which was founded by
statute in 1832, also lays claim to be the third oldest university in England,
but at first it only admitted students for the Anglican Church ministry: http://www.durhamstudent.co.uk/resources/university-history/
[7] The Inns of Court School of Law is now
incorporated in the City Law School where you get your LLB: https://www.city.ac.uk/law/about.
[9] Collymore v Attorney-General (1967)
15 WIR 229.
[10] Hinds v The Queen [1977] AC 195.
[11] Rt Hon Beverley McLachlin, PC, Chief Justice
of Canada, The 21st Century Courts: Old
Challenges and New, the fourteenth AIJA Oration in Judicial Administration,
a speech delivered on Friday April 28, 2006, in Sydney, Australia.
[12] Donoghue v Stevenson (1932) AC 562.
[13] The Rt Hon Sir Dennis Byron: An Address to Mark the Opening of the Law
Year, 2000/2001; delivered simultaneously in the courthouses of all the
OECS countries by video link on Monday 18th September, 2000, from Castries, St
Lucia.
[14] Many of our courts had hundreds of cases,
some as many as fifteen years old, stuck in the system, and the programme was
designed to remove these cases by either trial or striking off before the
planned new Civil Procedure Rules were brought into effect.
[15] The Rt Hon Sir Dennis Byron: An Address to Mark the Opening of the New
Law Year 2002/2003, delivered by video link on 16 September 2002 from
Charlestown, Nevis.
[16] Susan Beck, ‘Technology Shapes the Future of the Law’ in The American Lawyer,
August 4, 2014.
[20] Paul Lippe and Daniel Martin Katz, ‘10 predictions about how IBM’s Watson will
impact the legal profession’ in The New Normal, posted October 2,
2014.
[21] Trial by battle was not officially abolished
by Parliament until the year 1819. The
year before, a litigant threw down a gauntlet in anger in front of the judges
of the King’s Bench, and demanded his right.
The Lord Chief Justice, Lord Ellenborough, decided this method of trial
was still a permissible option under law;
but the other party refused to go through with the procedure, and the
case was dismissed: https://en.wikipedia.org/wiki/Ashford_v_Thornton
[24] Justice Ming W Chin, ‘The Court of the Future: Use of Court Technology in the Next Generation’
cited in ‘Embracing the Courts of the
Future: Final Report of the Next Generation Courts Commission, a
partnership of the Supreme Court of Georgia and the State Bar of Georgia.
