Judges And The Public Interest

EDITOR, The Tribune.

I welcome Justice Anita Allen’s response to those of us in the wider public and press who have grown increasingly impatient with perceived failures of the court, which we view as a significant causative factor in the crime wave we are witnessing.

In defending the Judiciary from what she sees as unfair and unwarranted criticism, Justice Allen specifically cites a Tribune Editorial referencing a recent homicide, which in turn cites a letter by me noting that the victim appeared to have been out on the streets after an unseemly light sentence, having been convicted only in 2009 of a violent armed robbery.

It now appears that the individual referred to in my letter, cited in The Tribune’s editorial, was not the recipient of a shockingly short sentence, but rather was released following the overturning of his conviction, three months before his murder.

Even in this internet age, when a mere Google search suffices as “research”, the true explanation for the victim being free so short a time after conviction did not appear in any such search, nor did it enjoy prominent press coverage. In fact, as his release came only three months prior to the murder, the ruling seems not to have been posted by the Court of Appeals’ own site until quite recently.

In any event, leaving aside the obvious implications of so many accused persons winding up dead by gun violence within a few months of their release on acquittal or appeal, I readily concede that my assumption in this case was wrong and therefore retract it as an example of the pattern of bad judicial discretion that I described in my letter.

But the Justice’s broader statement, that no empirical evidence exists of the link between judicial permissiveness on bail and high rates of violence, is just plain wrong. The facts are clear and indisputable. In the four years to mid-2015, 138 people were murdered while on bail. For 2014, one quarter of all murder victims were on bail. Unfortunately, the press does not keep a systematic count, but if they did I am certain that the numbers of perpetrators later convicted of killing people while they were on bail would be similarly shocking.

Justice Allen states that, since 2015, a record year for murder, saw very few successful bail applications, this shows there is no correlation. That is weak. Does it matter to the debate whether a person was bailed in 2013 or 2014 and then killed in 2015? It certainly does not controvert the obvious fact that the large numbers of people cumulatively on bail is related causatively to the large number of murders. Whether they were bailed this year, last year or the year before, the fact is that they would not be murdered (or murdering people) if they were not on bail. It would require intellectual sumersaults to refute that.

My assertion, and the assertion of many other members of the public, is that Judges routinely fail to take into consideration or account the public interest, public safety and even the need to keep the accused alive to face trial, when they make decisions on bail applications. They confine themselves to the narrowest of considerations, which do not reflect the realities on the ground. They differ in this regard to their counterparts in other countries.

While the constitution does (unfortunately) constrain judicial discretion by enshrining a “right” to bail as an aspect of the trial system, it clearly does not deprive a judge of discretion to deny it where there is a likelihood of harm to or by that person while they are on bail. In the Bahamas in 2016, that is the case in most of the trials involving violence and murder, owing to a culture of retribution.

In light of the intransigence of judges, it seems obvious to me that the only way to deal with the bail issue is to revisit the constitution and either amend or (better) remove the right to bail in serious, violent cases.

The same can be said of jury trial. The new Chief Justice, Hartman Longley, who, from his statements, seems to be shaping up to be one of our best high ranking jurists in years, has himself rightly identified jury trial as an outdated and unhelpful aspect of the trial system that achieves little other than wasting time and attracting abuse.

It is good to see judges at least responding to the public debate on these matters, rather than threatening or scolding. For its part, the public has for too long treated this most important arm of government as something that is above criticism and scrutiny from the people that it works for. That is a wrongheaded and dangerous mindset.



January 29, 2016.


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