The Anguilla Courthouse

Prior to the year 1825, when Anguilla joined with St Kitts and came under the jurisdiction of the St Kitts judicial system, Anguilla had no legally established Court.  A committee of the Anguilla Council served as Justices of the Peace and imposed such penalties and fines as seemed proper to them.  Appeals lay informally to the Governor in Antigua, but this right was seldom exercised. 

This was unusual in the West Indies at the time.  All of the other colonies had legally constituted courts, some of them since the first half of the seventeenth century.  By the time of the General Assembly of the Leeward Islands of 1705, when the common law of England was formally adopted by an Act, all of the islands except Anguilla had legally established courts.  The explanation for Anguilla’s lack of a properly constituted court lies in the poverty of the soil and the extremes of drought that the island regularly suffered.

The plantation economy never flourished in Anguilla.  The sugar industry made a brief appearance in the 1740s, but was extinguished by the American Revolution of 1776 and the ensuing blockade of trade with the rebelling colonies that was enforced by the Royal Navy.  Even the deputy governor of Anguilla functioned without a formal patent.  Every other governor and deputy governor was appointed by royal patent.  The leading planters of the island always appointed the governor of Anguilla.   As he would inevitably be the most powerful planter in the island, he was in effect self-appointed.  As one governor in Antigua reported to the Committee of Trade and Foreign Plantations in London in late eighteenth century, “If the cudgel of the governor of Anguilla be one whit lesser than one of his subject’s, then ‘good night governor!’”

From the year 1825 the Chief Justice of St Kitts visited Anguilla on board his sloop to conduct the Assizes periodically.  Sitting with him on the bench were two local JPs who assisted him as his assessors.  Anguilla’s judicial system changed with the judicial system of St Kitts to which it was joined.  By the year 1967 the colonies of the Leeward and Windward Islands, after the break-up of the West Indies Federation, were headed to independence like their elder brothers and sisters in Jamaica, Trinidad & Tobago, and Barbados.  They entered into the intermediate status of Associated States with Great Britain.

Associated Statehoodship brought with it the West Indies Associated States Supreme Court.  It had a short life in Anguilla.  Within two years Anguilla was in rebellion against its enforced marriage with St Kitts and Nevis.  The Anguilla Revolution of 1967 was the first successful armed revolt in the British West Indies.  The thirteen members of the St Kitts police force manning the police station were packed onto a LIAT airplane still dressed in their pyjamas.  The St Kitts judge was jeered out of his courthouse and chased down the runway until he boarded a waiting flight to take him back to St Kitts.  As is well known, the social welfare officer, Raphael Lake, was appointed Magistrate by the Anguilla Council and functioned in that office until he was replaced by the British administration after their invasion of the island in 1969.

In 1971 the British Parliament passed the Anguilla Act, which permitted Britain to separately administer that part of the Associated State of St Kitts, Nevis and Anguilla.  Britain selected and paid for a Magistrate, a High Court Judge, and three Judges of the Court of Appeal.  These were rubber stamped by the Judicial and Legal Services Commission of the West Indies Associated States.  Appeal lay to the Privy Council, and at least one appeal went all the way before Anguilla re-joined the West Indian judicial family.  Several West Indians, most of them retired judges, were appointed from time to time to act as Magistrates and High Court judges in Anguilla in this way.  They included the late Elwyn St Bernard and Frank Field.  Don Mitchell of St Kitts and Anguilla, Ena Woodstock of Jamaica, and Patricia Mark of Grenada were among those appointed as Magistrate.  Long-serving clerks of the court at this time included Mary Richardson, who on occasion in later years was appointed JP and acted as Magistrate in emergencies, and Marge Connor, still well known in the community.

By 1980, the People’s Action Movement party in St Kitts had gained power by defeating the Labour Party in general elections.  The administration of the new St Kitts-Nevis premier, Dr Kennedy Simmons, negotiated with Britain for independence.  The British agreed, on condition that Sombrero was transferred to Anguilla from which they could more easily control the light-house island and the sea approaches to the Panama Canal, and on condition that St Kitts let Anguilla go.  By the year 1982, the Eastern Caribbean Supreme Court, to give recognition to the demise of the Associated States and their replacement by independent Commonwealth Caribbean countries, had replaced the West Indies Associated States Supreme Court throughout the region.  The Anguilla Assembly passed the Eastern Caribbean Supreme Court Act, and re-entered the fold of the regional judiciary.  From that time the Magistrates and Judges of Anguilla have been appointed by the Judicial and Legal Services Commission, and not just been rubber-stamped.

Prior to the Hurricane of 1955, the courthouse was situated on the top of Crocus Hill in what was probably Governor Gumbs’ old home.  The wooden structure was blown off, but the masonry basement, including the cell, can still be seen alongside the large ugly water storage tank in its yard.  It was only in 1964 that the Bradshaw administration replaced the lost courthouse.  One of the first buildings that Wallace Rey built after he retired from the US base in Antigua where he had worked since the War, was the new court house.  Its magnificent reinforced concrete beams that reach up from the foundations and arch up and over the roof to descend on the other side made it one of the most imposing structures at the time on the island.  That courtroom served as the home for the Anguilla Assembly, the Court of Appeal, the High Court, the Magistrates Court, and the Juvenile Court.  They all shared the one-room premises without difficulty.  Until recently, the Magistrates court sat on Thursday mornings, the Juvenile Court on one Friday morning per month, if there was a case to be heard.  The High Court judge visited from another island no more than once or twice a year for a month at most.  The Court of Appeal sat for a day or two as needed.

By the late 1990s the old courthouse was no longer adequate to serve as a multi-purpose building.  The tourism industry had fuelled an enormous growth in the economy, and crime and other litigation had mushroomed.  With British financial assistance, a new building was constructed in the administration grounds.  It now consists of the present three rooms we know.  They are the Magistrate’s Court, the High Court, and the House of Assembly.  These will serve Anguilla for the foreseeable future, but inevitably, in time, will come to seem in their turn to be out-dated and in need of replacement.  We can but hope that that will be a long time coming.  As we in turn achieve independence as our neighbours have done, it will be time for us to make the funds for its replacement available so that future generations will have the structures they will require.

8 January 2004.

Judicial Ethics

Judicial Ethics.

A speech given at a meeting of the Rotary Club held at City View Hotel, St John’s, Antigua on 28 March 2003 –

By Justice Don Mitchell QC

[1]        When you ask a lawyer to speak, if you want us to speak on a topic for 10 minutes, you must give us plenty of time to prepare.  But, if you want us to stand up and speak all night long, we are ready right now!  I have been given plenty of notice, so I shall limit myself to speaking for 15 minutes.

[2]        What a judge can do socially is somewhat limited.  One of the out-of-court activities that a judge is permitted to do is anything that will improve the law, the legal system, and the administration of justice.  So, I have decided to speak to you a little about judicial ethics. 

[3]        Not many of us know that on 9 December 2000, at a Judges’ Conference in St Vincent, all the judges of the Eastern Caribbean Supreme Court formally adopted and agreed to be bound by a written Code of Ethics.  A copy of this code can be obtained from any Bar Association, from the Registrar of the Supreme Court, or if every other avenue fails, from the office of the Chief Justice in St Lucia. 

[4]        The Magistrates of our region have recently, just last month, held a conference in St Lucia at which they have begun to discuss binding themselves to follow their own written Code of Ethics.  It will not be long before they adopt their own code.  We in the Caribbean are not alone in this exercise.  Most Commonwealth judiciaries have bound themselves to uphold the standards of a written code.

[5]        The Code of Ethics of the Judiciary of the ECSC consists of 5 Canons.  Let me give you the list to start off:

Canon 1.         A Judge Should Uphold the Integrity and Independence of the Judiciary.

2.         A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities.

3.         A Judge Should Perform the Duties of the Office Impartially and Diligently.

4.         A Judge May Engage in Extra-Judicial Activities To Improve the Law, the Legal System, and the Administration of Justice.

5.         A Judge Should Refrain from Political Activity.

[6]        These attributes are inextricably tied to the scriptural evolution of the mandate of the judicature.  Two commands in the Old Testament bear this out.  So, in the Book of Deuteronomy, Chap 16: 18-19, Moses enjoins his people:

“To appoint Judges and Magistrates. . . these men are to judge the people impartially.”

And,

“They are not to be unjust, or show partiality in their judgment;  and they are not to accept bribes, for gifts blind the eyes even of wise and honest men, and cause them to give wrong decisions.”

[7]        The Holy Qura’an of the Muslim world bears testimony to the imperishability of these virtues.  So, at verse 135, it is written:

“O ye who believe, stand out firmly for justice, as witnesses to God, even as against yourselves, or your parents or your kin, and whether it be against rich or poor; for God best protects both.  Follow not the lusts of your hearts lest ye swerve, and if ye distort Justice or decline to do Justice, verily God is well-acquainted with all that you do.”

[8]        The ideal Judge is described in the Pakistani Code of Ethics, in arresting prose, as follows:

“A Judge should be God-fearing, law-abiding, abstemious, truthful in tongue, wise in opinion, cautious and forbearing, blameless, untouched by greed.  While dispensing justice, he should be strong without being rough, polite without being weak, awe-inspiring in his warnings, and faithful to his work, always preserving calmness, balance and complete detachment for the formation of correct conclusions in all matters coming before him.”

[9]     Of course, if we look to the New Testament, we are met with the daunting warning given by St Matthew, Ch.7, v.1:

“Judge not, that ye be not judged.”

[10]      That should be enough to put anyone but the most persistent off the job!  And St Luke complains, at Luke Ch.11, v.52:

“Woe unto you, lawyers!  For ye have taken away the key of knowledge.”

[11]      One last quote, this time from Revelations, Ch.20, v.13:

“And the sea gave up the dead which were in it;  and death and hell delivered up the dead which were in them:  and they were judged every man according to their works.”

[12]      You can tell from all the above that it is difficult to find anything encouraging in the New Testament to describe the proper function of a Judge or a lawyer.

[13]      Now, I am not going to talk to you about all of the Canons.  Some of them are quite obvious, and would be more boring than others for an after-dinner speech. 

[14]      So, concerning CANON 1, A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY, it is only necessary to state the obvious.  An independent and honourable judiciary is indispensable to justice in our society.  In the words of the Code, a judge is called upon to participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.

[15]      So, also, CANON 4, A JUDGE SHOULD REGULATE EXTRA-JUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL DUTIES AND OBLIGATIONS, this only means that a judge is permitted to engage in such extra-judicial activities that do not, in the minds of right-thinking members of the community:

a)                  cast reasonable doubt on the Judge's capacity to act impartially as a Judge;

b)                  compromise the dignity of the office of the Judge; or

c)         interfere or be in conflict with the performance of the judicial duties or the office of the Judge.

[16]      And, CANON 5, A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY, the Judges of the Eastern Caribbean States preside in small islands where political rivalries are often intense.  It would be clear to all that Judges should be extremely sensitive to the necessity for them not only to be absolutely non-partisan but also to refrain from any conduct that might appear to be partisan.

[17]      I propose to highlight just two of the Canons.  First, CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES.  This means that a Judge should not:

[a] allow family, social, political or other relationships to influence judicial conduct or judgment;

[b] lend the prestige of the judicial office to advance the private interests of others; nor convey or permit others to convey the impression that they are in a special position to influence the judge;

[c] testify voluntarily as a character witness; or

[d] hold membership in any organization that practises discrimination on the basis of race, gender, religion, or national origin.

[18]      So, a Judge is called upon to be sensitive to possible abuse of the prestige of the office.  A judge must be careful to avoid the appearance of lending that prestige of the office for the advancement of the private interests of the judge or others. 

[19]      That is why judges appear a bit stand-offish at times, and unwilling to get involved in various worthy social activities.  It is not that the judge would not prefer to socialise and to get involved.  It is just that he is concerned that it might damage in the eyes of some observers the aspect of impartiality and detachment that all classes of the public and sections of society are entitled to.  Litigants might inadvertently be led to believe that by supporting the same interests, they might gain some advantage. 

[20]      The prestige of the office does not belong to the judge, it is not something that he deserves, it is something that belongs to the people, and the judge has no right to take it away from them.

[21]      And, CANON 3:  A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE IMPARTIALLY AND DILIGENTLY.  This requires that a Judge should

[a]        Maintain professional competence in the law, and should not be swayed by partisan interests, public clamour, or fear of criticism;

[b]        Hear and decide matters assigned to him/her expeditiously and fairly;

[c]        Maintain decorum in all judicial proceedings;

[d]        Be patient, dignified, respectful, and courteous to all those who appear before him/her in an official capacity; and

[e]        Avoid public comment on the merits of a pending action.

[22]      This Canon more directly touches those who appear before a judge or magistrate in court.  It calls for judges to be patient, dignified, and courteous to all accused persons and litigants.  Patience and sobriety are important attributes of the judicial office.  A judge must zealously guard his temper.  Irascibility is to be avoided, no matter how provoked.  If he banishes his mental sobriety, he is likely to be upbraided on appeal.  In one case, the Court of Appeal used the following strong words:

“It is the height of irresponsibility for any judge to take undue advantage of his judicial immunity to harass, abuse and intimidate litigants.  No language is strong enough to condemn the conduct of the Judge in these proceedings.  He had abdicated the known norms of judicial conduct and has brought the sacred duty of adjudication into disrepute.”

[23]      Asking too many questions can give the impression that the Judge has descended into the arena with the lawyers.  In one English criminal case, the Judge asked a witness 495 questions, when the total combined questions asked by counsel for the prosecution and counsel for the defence was 847.  Predictably, the conviction of the accused person was quashed on appeal. 

[24]      Just a few years ago, the English judge, Sir Hugh Hallett, asked so many questions that the party who had lost appealed to the Lord Chancellor.  The judge was advised to resign.

[25]      This Canon also calls for the prompt disposal of cases.  The Chief Justice has requested of his judges to aim for a target of disposing of all trials within a maximum of 18 months of the filing of the claim.  Those of you who have had anything to do with the court system may not believe it, but the New Rules of Court are helping us in improving our disposal rate every day.

[26]      This Canon also speaks to bias and the appearance of bias.  Public confidence in the judicial process is rooted in the belief of impartial adjudication.  Anything that is capable of denuding confidence in the work of a judge must be scrupulously avoided. 

[27]      Bias and the appearance of bias call for a judge to disqualify himself immediately from trying the particular case.  The fact that a judge was retained by one of the parties while he was in private practice would, I am sure we would all agree, cause that judge to disqualify himself from trying the case.

[28]      This rule also speaks to the issue of corruption.  Corruption has been defined as the misuse of public power for private gain.  It is wider than bribery, graft, and nepotism. 

[29]      So, most of us would include as instances of corruption cases where a judge is able to abuse his office because of undue sensitivity to contempt of court, or indiscriminately awards ex-parte injunctive orders, or recklessly issues arrest warrants.  Power and responsibility do strange things to those who wield them.  Some carry them with humility, humanity, understanding and integrity, and so enhance the concept of justice.  Others show their feelings of insecurity, shallowness, and lack of confidence, by falling back on arrogance and rudeness.  They forget that these powers are not designed to fan the vanity of individual judges.  They are only to be exercised for the advancement of justice and the good of the public. 

[30]      Judicial independence is not a right or privilege of the judiciary, it is a constitutional guarantee given to the people of this State.  If it is a privilege, it is a privilege that belongs to all of us.  That is why it is the duty of every judge and right-thinking person to stand in defence of judicial independence. 

[31]      The Judicial Code of Ethics aims to get judges to concentrate their minds on the necessity and desirability of entrenching this concept in the minds of all who come into contact with the judicial process.

Fact Finding

I confess to feeling a bit of a fraud in making this presentation.  As Magistrates, each one of you is far more qualified to give this talk on fact-finding than any High Court Judge is.  I worked that out years ago when I myself served as a Magistrate.  It all comes back to what I call the Factor of 10.  Using this factor, I worked out early that each Magistrate does as much trial work as one thousand judges.  You can work it out for yourselves by using the Factor of 10 and making the following elementary calculation:  From all the evidence, any Magistrate has to try 10 times as many cases, 10 times as quickly, as any 10 High Court judges put together.  This proves to me that any one Magistrate does more fact finding than any thousand High Court judges.  So, I ask myself, who am I to be talking to you about fact-finding?  I suppose that it could only be my experience, having served as a Magistrate for four years, that qualifies me.  Admittedly, that was 25 years ago.  But the issues surrounding fact-finding have not changed during that short time.

I want to draw on a 1996 paper on the topic Fact Finding and the Judiciary by Justice Gerald Seniuk and Professor John Yuille of Canada published by the Commonwealth Judicial Education Institute and made available to me by Justice Saunders of our Judicial Education Institute.  Plagiarism is a vice that comes easily to us judges and Magistrates.  We call it “following precedent.”  So, I suppose I should not apologise.  The paper by Justice Seniuk and Professor Yuille was amazingly insightful, and I hope that you will be able to read all of it one day.

People expect us to resolve disputes in a rational way.  To achieve rationality in coming to a decision, we have to address the two aspects of “foundation” and “reliability”.  Foundation refers to the rational or factual grounds for a decision.  Reliability reflects the ability, given the same foundation, to regularly produce the same decision.  Our justice system aspires to be a rational process of dispute resolution, but the process of fact finding at trial sometimes offends these two basic criteria of rationality: foundation and reliability.  We see foundation thrown out of the window when a magistrate declines to offer reasons for coming to his decision.  There is no foundation for the decision.  We see reliability put in question when the Court of Appeal disagrees with our findings.  One set of fact-finders coming to an opposite decision from another fact-finder on the same evidence.

Let us look at some of the bounds of rationality in a criminal trial.  The first rule is that there is no prescribed code guiding fact finding.  Each Magistrate must develop his or her own personal guidelines.  While a criminal trial is a search for truth, the fact finder must engage in a search for proof.  No notion is more closely intertwined with truth than the notion of fact.  Fact may be said to be distinguished from that which is assumed, suspected, alleged, believed, hoped, or feared to be so.  A criminal trial as a rational process involves us identifying the truth, that is the facts, giving reasons for this identification, and giving reasons for any resulting decision.  When we sit as jurors and find the facts, we have one advantage over most lay people.  We have the additional quality of being legally qualified.  We can appreciate the rules to apply in deciding what weight to give to certain types of evidence.  We know when to discount some bits of evidence, as being hearsay, for example, and when to give greater weight to others, for example, to an admission against interest.  As judges and magistrates, we are supposed to be well suited for this task because our discipline places a premium on sound judgment.  Sound judgment has been described as “the power of deliberation and discernment that the most troubling cases invariably require and for which no doctrinal sophistication, or sheer intellectual brilliance, is ever a satisfactory substitute.”

It used to be thought that if two people in the same situation are required to make a decision and they decide differently, then one of them must have acted unreasonably, either because of imperfect knowledge of the facts or due to some irrational motive.  But we are all familiar with the situation where justices of appeal, respected for their competence and integrity, disagree among themselves in their decisions.  Such appellate disagreements, reflected in majority and minority decisions in a case, are acceptable in legal reasoning.  An appellate decision need not be unanimous to be accepted as just.  We say that a decision is just “if it can be justified by sufficient reasons.”

Even at the fact-finding level there can be honest disagreement.  Because facts are supposed to be “hard, brute, inescapable, awkward, and indisputable”, it is less obvious how there can be reasonable disagreement about their existence.  Something either happened or it did not happen.  However, evidence presented in at trial is contested, and the resulting findings of fact based on such evidence are neither hard, inescapable, nor indisputable entities.  They are “findings” of fact.  As such they are a conceptual hybrid which, without a criterion for imposing uniformity, can lead to reasonable disagreement.

So, in the task of fact finding, the quest for us is the truth, but our concern is with the problems of proof.  Sometimes, the evidence on an event or issue simply does not exist.  Even if it exists, we cannot cause it to be brought forward.  In our adversarial system, the parties decide which evidence to present, and this may be incomplete.  For this reason, it has been said that we do not as fact-finders ascertain the truth in any real sense.  All that we can do is to give a decision on the evidence presented to us, evidence which is often incomplete, and with the collection and presentation of which we have no control.

But fact-finding is even more complicated than the lack of evidence entails.  The decisions that we come to on the evidence emerge from our human reasoning.  That human reasoning is in part a product of our own personal experiences.  So, lawyers recognise that they can never be sure which way a court or jury will jump on issues of fact.  Many factors combine to make for uncertainty.  When it comes to the believability, the reliability, the credibility, of witnesses, then, unavoidably, we must make a guess about the facts.  There is no doubt that this is a problem of proof.  The question for us is how to find the facts in a trial.

Because of problems such as these our justice system has been described as “imperfect procedural justice.”  It is imperfect because the innocent may be convicted or the guilty set free.  The academics contrast this with “pure procedural justice” where the outcome is always correct or fair if the procedure is properly followed.

The search for a reliable procedure has driven our legal system since early times.  We all read in law school about that point in the middle ages when the uncertain judgement of humans began to replace reliance on the judgement of God.  Previously, fact-finders relied on such irrational, primitive and barbarian modes of proof as trial by ordeal, oath and judicial combat.  These gave way to the idea of human juridical competence.  There remains a great deal of uncertainty about these new procedures:  initially, uncertainty about we mere mortals assuming the divine task of determining guilt or innocence, and latterly, the practical uncertainties connected with the unpredictability of judges and juries.

The concept of “belief” is central to the common law’s fact-finding process.  A conviction will frequently be based on the Magistrate believing one witness over another.  Belief is an inner state of mind, but to be reasonable it must be based on evidence.  Belief is distinguished by the academics from such concepts as faith or intuition.  John Locke defined faith as knowledge resting on authoritative testimony, “the assent to any proposition, not thus made out by the deductions of reason, but upon the credit of the proposer.”  Intuition has been defined as “a direct perception of truth or fact independent of any reasoning process.”  We are not expected to come to our findings based on either faith or intuition.  Fortunately, we can rely on the reluctance of the Court of Appeal to interfere with our findings of fact where they are based on our findings that we believed one or more of the witnesses.

Additionally, we all know that it is not unusual for two persons presented with the same evidence to honestly disagree.  Such disagreement may have many different grounds.  Seeing the same things with different eyes, any two of us may honestly and intelligently come to opposite conclusions.

Thankfully, because it would be unworkable, there is no prescribed code guiding us as fact finders.  It has proven impossible for the professors to find a rule which is a codification of common sense.  We can only try to achieve the ideal of justice within reach of our human determination.  Each of us must develop a personal list of cases and principles from which we draw most often.  What is needed of us is good judgement where the ambiguities are greatest and the demand for proof so often misplaced.  Good judgement is not simply a type of deduction.  It is not a direct insight whereby we can see that something is obviously the case.  It is a complex phenomenon with two competing goals.  On the one side, sympathy and understanding for both protagonists, and on the other, detachment from the interests of either.  Judgement is only developed through the making of judgements in the real world.  Good judgement in judicial decision-making depends on lengthy experience and training.  The most troubling cases require judgment rather than intellectual brilliance or doctrinal sophistication.  It is impossible to teach judgment.  The faculty of judgement is a mixture of art and science.  While sound judgement cannot be taught, it can be recognised and developed through practice, study and the exchange of experience at conferences such as this.

Personally, I find that in our adversarial system of trials, probably nothing counts more in helping fact-finding than the impression that a witness makes on me.  It is difficult in a busy court, acting as court steward, checking the police and the bailiff to ensure they are keeping order, cautioning the lawyers who are talking too loudly at the bar table, observing the spectators at the back of the court to ensure that they are not making signals to witnesses and arrested persons sitting on the bench, all while you have to act as court stenographer writing down all the evidence, to decide who and what you believe.  But impressions do count.  I do not hesitate to write in the margin a short, cryptic, and contemporaneous note as to whether I find a witness credible, or the evidence corroborates other evidence, or amounts to a discrepancy.  It may be an unnecessary note if the case finishes that same day, and I can give my decision on the spot.  But too many cases get adjourned part heard for that to be a safe assumption.  And, I find that in the event of an adjournment, if I do not have notes in the margins, I have to spend much more time re-reading the evidence carefully to try to remember what my impression of the witness and his testimony was at the time he gave it.

A Magistrate is expected to be able to make up his or her mind instantly.  I found that carrying work home to write my decision did not help.  It only multiplied the work.  I found it was much easier, at the end of the case, especially if the witnesses had been spread out over a period of weeks or months, to swiftly and silently review the notes of evidence, and to give my findings right there and then, making a note as to my finding and my reasons in the event of an appeal.  Putting question marks against bits of evidence that I find questionable, bold double lines against the margins of bits of evidence that I find particularly compelling, other short notations as to corroboration and discrepancies, is particularly useful, especially if the case is put off to another day, and there is a risk of my forgetting the significance of a particular bit of evidence.  Reserving my decision did not make my finding more accurate, I found.  It only made it much more work to deliver the decision.  In the four years I served as Magistrate, I only once had to deliver a written decision, and I seem to recall being embarrassed to re-read it years later.

A speech at the Magistrates’ Orientation Programme held in Antigua on 8 July 2002

The Prison in St Vincent No 2

Discussion Paper circulated to participants at the Sentencing Policy Conference held in the Judge’s Chambers, Court Room No 2, prior to the June 2001 Criminal Assizes.

1.           Internally, the Prison continues, since my last visit prior to the February Assizes, to be run entirely by the inmates.  The institution is completely controlled by a group of gang-leaders referred to by both the inmates and by the warders as “the Radicals.”  The Radicals decide which inmates sleep in which cells, who talks to whom, what the distribution of drugs and alcohol is to be, and at what cost, who will work and who will stay in the prison yard, who gets beaten and who gets stabbed.  The warders remain outside of the Prison yard.  In practice, they only provide a ring around the men inside, who live subject only to gang regulation.  The Prison continues to be awash with blood nearly every day.  The Radicals order the nails and teeth of inmates to be pulled as routine punishments.  Beatings, rapes, stabbings and arm-breakings are standard conditions of living in the Prison.  There is no reason to believe that HIV prevalence has reduced from the 40% level reported in February.  Drugs, money, weapons and alcohol continue to pour over the walls and through the gate.  The Acting Superintendent reports that certain warders co-operate with the convicts.  They allow all forms of contraband through the main gate.  He says they do this sometimes for money and sometimes from fear of certain gang members.

Attitude of Warders

2.           The warders no longer patrol the internal prison yard, either in the day or in the night.  They stay outside the gate, except when their senior officers force them inside.  They only venture inside in large patrols, and for short periods of time.  The warders can see when an inmate is having his teeth extracted with pliers or a hammer and nail, or his limbs broken with bed-boards.  They consider themselves powerless to intervene.  This has happened right up against the gate that separates the inmates from the warders.  The warders have been afraid to open the gate to rescue the inmate being assaulted.  Inmates are beaten into unconsciousness by other inmates in front of warders.  Out of fear they do nothing to intervene.  Their lives as well as the inmates’ lives are continuously at risk.  On the day of my visit to the Prison, 5 inmates were reported by the Acting Superintendent to have been hospitalized for serious injuries.  The warders who had observed the altercation in question are reported to have locked the men involved in a cell and told them to go ahead and kill themselves.  No proceedings are expected to be brought against any of the convicts or the warders in question.  In terms of conditions prevailing at the Prison, there was nothing unusual or exceptional in the incident.  There is unlikely to be any written record made anywhere of the incident, or of the wounds given and received by the inmates.

Incidents Book

3.           No report is made by any warder of any mutinous or violent assault committed by any inmate in his presence.  There is in effect no requirement on the part of the prison authorities that such incidents be reported or proceedings brought against the offenders.  No mechanism presently exists for making any such report.  The “Incidents Book” for reporting such matters has not been kept for some years.  No record of any injuries is kept by the warders.  No punishments are imposed by the Superintendent or the visiting justices.  Criminal charges are not routinely brought for criminal offences committed by inmates.

Enforcement of Rules

4.           None of the existing Prison Rules designed for the good management and governance of the Prison and the inmates appear to be enforced.  The Rules are not discussed among the warders or the inmates.  No copy was immediately available for inspection on the visit to the Prison.  There is no need to make new Rules.  The present Rules have to be circulated and discussed and strictly enforced if the situation in the Prison is to be improved.  The existing Rules, if enforced, could bring about a transformation of conditions in the Prison. 

Medical Facilities

5.         There is a Doctor’s Record kept by the Prison Doctor.  It is mainly used for recording prescriptions of medication.  The medical authorities do not regularly fill these prescriptions.  The authorities seldom deliver the medication prescribed by the Prison Doctor to the inmates in question.  The Acting Superintendent has stated publicly that in the absence of official supplies, he had personally spent thousands of dollars out of his own pocket over the past two years providing inmates with vital drugs for diabetes and other chronic illnesses they suffered.  The convicts I spoke to confirm that the claim is true.

6.           The Prison Clinic under construction on my last visit in February is still incomplete.  There is no facility at the prison to treat injuries.  Battered and wounded inmates cannot be treated in any way at the Prison.  They have to wait for many hours after their beatings for transport to be organized to take them to the casualty department at the public hospital. 

7.           The previous Prison Doctor has ceased regular visits to the Prison.  It is thought she has been transferred.  I was told that it is believed that a new doctor has been assigned to the Prison.  He has not visited in the several weeks since the previous doctor ceased attending. 

8.           The completion and equipping of the Clinic, the resumption of regular medical visits, the immediate compliance with directions given by the doctor, and the taking of sensible and practical measures to reduce the risk of transmission of the HIV virus, will go a long way to making conditions in the Prison more humane.

Visiting Justices

9.           The warders reported that no visiting justices have enforced the Prison Rules at the Kingstown Prison for many years.  Only the visiting justices can impose the punishments for serious infractions provided by the Prison Rules.  In the absence of a professionally functioning and well-trained board of visiting justices, the Prison Rules cannot realistically be expected to be enforced. 

10.       The Acting Superintendent reports that the visiting justices have not been to visit the inmates for several months, certainly not since either the last sitting of the Court of Appeal or of the last Assizes. 

11.       The Court of Appeal, at its last sitting in St Vincent in February past, ordered the visiting justices to prepare and submit to the Court a Report on Prison Conditions.  The Court of Appeal next sits in July.  In my visit to the Prison I enquired on how the report was progressing.  I was informed that the Report has not been completed.  It is not expected to be completed for presentation to the next sitting of the Court of Appeal.  I was told that the chairperson of the visiting justices had been preparing the report.  I was told that before she could complete her report, general elections had resulted in a change of administration, and she had been dismissed as a JP.  She will no longer be able to complete the Report.  No one at the Prison could inform me whether there was presently a new chairman or a functioning board of visiting justices.

Inadequate Facilities

12.       There appear to be two principal causes of the present unacceptable state of affairs at the Prison.  The first is that the building and facilities are under-funded and inadequate.  There is an unacceptable lack of provision by the authorities of minimal financial, human, and material resources for the Prison.  Two token examples can be given.  First, the food of the men is still cooked on open wood-fuelled fires in the prison yard.  The modern kitchen built at the initiative of the present Acting Superintendent remains unequipped and unused.  Secondly, the men mainly sleep on the concrete floors of their cells.  Their beds are unusable because they lack wooden slats on the beds.  These are removed by gang leaders to be used as weapons or for illicit cooking in the cells during the nights.  The other unacceptable physical conditions described in the last Assizes as a result of my first visit to the Prison in February, remain unalleviated.

Lack of Professionalism

13.     The second cause of the unacceptable state of affairs at the Prison is the complete lack of professional training for the warders.  None of them has ever received any kind of training, according to what I have been told.  There is an Acting Prison Superintendent at the Prison.  The Acting Superintendent is a retired police officer with no previous experience in running a prison.  The presently vacant post of Superintendent of Prisons has not been advertised.  The Acting Superintendent tells me that no one is presently away at an appropriate institution studying to fill the post.  The last time any warder is said to have received any training was in about the year 1984.  As a result, none of the warders has any idea of the most basic techniques for maintaining order and discipline in a prison.  The warders do not enforce any Rules.  They do not appear to be aware of the Prison Rules.  Some of them are said to be unable to read and write. 

14.       Those warders with ability and motivation should be sent away on attachments at better-run prisons in our region so they can learn how to perform their duties.  If the aid agencies provide foreign training for prison officers, their assistance should be accepted.  For the conditions in the Prison to improve, it is essential that the science of prison management and prisoner control be taught and enforced.  The authorities should consider enforcing a zero tolerance to crime and insubordination regime in the Prison.

Lack of Discipline

15.     The Acting Superintendent reports that the warders do not obey his instructions.  He is a retired police Superintendent, and not “one of them.”  He finds himself powerless to discipline mutinous warders.  When he attempts to do so, they claim to be civil servants and only amenable to the Public Service Commission.  He complains there are no rules made for the disciplining of warders that he can enforce. 

16.       Some of the warders yearn for the good old days when the Superintendent ruled the prison by terror and extremely violent methods.  The methods used then, they say, may have been illegal, but the warders and inmates were safe from the level of violence now current. 

17.       No pending charge against any mutinous warder has been brought to my attention.  If any charges do exist, they are not being pursued.

18.       This is a completely unacceptable state of affairs.  There is an urgent need for the authorities to weed out the bad eggs from among the warders.  They need to be prosecuted and dismissed if convicted.  They need to be replaced by properly motivated and trained new officers.  If the existing Prison Rules for ensuring discipline continue not to be enforced, the future will remain bleak.  The provision of a new Prison without a completely new attitude among the warders will be a complete waste of time. 

Lack of Security

19.       The newspapers report that the police have been stepping up their raids on the Prison.  Each raid continues to see the confiscation of ever increasing volumes of contraband.  This includes not only drugs, alcohol, and money, but also weapons.  More frequent Police raids on the Prison are called for.  Security at the gate needs to be stepped up.  Detachments of police officers need to be on permanent duty at the Prison.  They need to be stationed both inside and outside the Prison.  They need to be there in rotation over 24 hours a day for the foreseeable future.  They will need to remain there until the prison is properly staffed with trained warders, and the prisoners have been brought under discipline.  Their duty would not be to enforce Prison Rules.  Their duty would be to apprehend and prosecute persons committing crimes.  Violent acts would be investigated and prosecuted.  Inmates found with contraband would be prosecuted.  Warders who permit the introduction of contraband would be investigated and disciplined by the appropriate authority.  Warders committing offences would be prosecuted and dismissed if convicted.  Members of the public who introduce contraband must be prosecuted and punished.  So long as the authorities fail to enforce the law, and continue to permit the Prison Rules to be ignored, the Prison remains unsafe as a place of incarceration for the normal convicted person.

II – Comments on Fining

20.       This court will need to be particularly sensitive in future when imposing a fine.  There is no point in imposing a fine that cannot be paid.  If there is no means to pay the fine, it is preferable that some other penalty be imposed.  If the convict is to be imprisoned, it is better that that penalty be as a result of its deliberate selection by the court. 

21.       It is not proper that some person other than the judge or magistrate decides which convict will be sent to prison for failure to pay a fine, and which other convicted person will be given the favour of remaining at liberty.  That state of affairs is illegal.  It removes the sentence of imprisonment from the judiciary and transfers it to officers of the executive. 

22.       Ours is an impoverished nation.  Most employed persons in this community earn only EC$20.00 per day.  Most convicts come from the poorest class of persons.  Few of them can afford to pay any but the most trivial of fines.  In future, only if this court has thoroughly investigated the means of a convicted person, and is satisfied as to his ability to pay a fine, will a fine, with a term of imprisonment in default, be imposed.  Giving an unemployed man time to pay a fine is no solution. 

23.       In cases where a fine is the chosen penalty for a particular offence, the court must adopt exceptional devices to ensure that an imposed fine can be paid.  For example, the court may consider delaying imposing the fine until the convicted person appears in court at a later date with money in his pocket.  In that way, the proposed fine can reasonably be imposed with every expectation that it will be paid.  If the person is unable to appear before the court with adequate funds in his possession, then the court must deliberately consider whether a sentence of imprisonment or some other penalty is appropriate.  It will not be a just sentence to let the convicted person got to Prison more or less by accident.

III – Comments on Probation

24.       The Probation Department has not had its situation improved since the last Assizes.  The members still perform all the social welfare activities of the government.  They are still without resources to provide probationary supervision.  No probation service other than counseling can be performed.  Due to the lack of transportation, they cannot visit probationers.  Only if a person on probation is so considerate as to visit the office will he receive a little counselling.  This is not the intention or purpose of a probation order.

IV – Comments on Remand Prisoners

25.       Given the conditions described above, only the most hardened and violent criminals should normally expect to be imprisoned in the existing facility.  My visit revealed that a large portion of the inmates continue to be very young men.  The Superintendent reported that over 30 of the 270 inmates there in the Prison at the time of the visit were on remand.  These are men who have not yet been convicted of any offence.  They are awaiting their trial.  Meanwhile, they are being mixed in among the convicted murderers and robbers.  Very bad things are happening to them both mentally and physically that were never intended.

26.       Many of those on remand at the time of my visit appeared to be first-time offenders.  Many of the inmates continue to be very young persons.  Even in normal circumstances, young persons and first-time offenders are seldom, if ever, sent to prison.  Only the most violent and serious of offences would warrant imprisonment in the case of a first offence.  Many of these young first-time offenders may be in Prison only for failing to pay an unrealistically high fine, and not as a deliberate decision to sentence them to a term of imprisonment.

27.       One of the ancient powers of a judge at the criminal Assizes has always been to clear the Prison of persons who are illegally held there.  This power was originally given to the judge by a special Writ of Gaol Delivery.  Now, it is an inherent part of his powers during the Assizes.  A token of its original function remains in a ritual performed at the end of each Assizes.  Then, the Superintendent of Prisons makes a Prison Return to the judge.  He reports on how many inmates are in his custody.  Normally, the judge just listens to the Return and nods his head.  It is now time to bring the process back to something of its original purpose. 

28.       During the course of the coming Assizes, I intend to have the Superintendent of Prisons report on every prisoner on remand in the Prison.  I shall want to know what each prisoner is on remand for.  I shall want to know how long he has been on remand.  All but those who qualify, as repeated and violent criminals, for continued incarceration in the present facility will be ordered released on bail if they have been on remand for more than a few days.  To ensure the Prison remains permanently cleared of unsuitable inmates, I intend to go through the same procedure every week until the end of the Assizes.  If I discover it to be permissible, I would continue to clear the Prison of all but the most violent remanded persons every week in between the Assizes, until conditions have returned to an acceptable level.

4 June 2001