Chief Justice Ivor Archie yesterday delivered the traditional speech at yesterday’s ceremonial opening of the new law term. Following is his presentation:
Consonant with the established long-term vision of the judiciary, this year our strategic focus has been encapsulated in the theme “Reframing Performance through Innovation.” It addresses the need to maintain high levels of excellence and productivity while responding creatively both to old problems and rapidly changing circumstances.
We consider it to be important for the judiciary, while our relatively young democracy is in the state of what I call “recreative” flux necessary for development and self-definition, to hold the center.
In that regard I believe that we have turned in a solid performance this past year, not without its challenges, but devoid of any major upheaval. It is important for us to give a statistical account of our performance so that you know what we are doing with our time and your money, but I trust that we will have discharged that duty more fully in the detailed annual report which should be available in electronic form next week and in print by the beginning of October.
I therefore propose to give only a brief snapshot during the course of this speech.
Court of Appeal
There was an increase in the number of High Court civil and criminal and magisterial (criminal) appeals filed, making a grand total of 557, which was up from 511 the previous year. The number of High Court criminal appeals disposed of more than doubled from 15 to 32, while there was a slight downtick in the civil and magisterial dispositions of which there were 197 and 155 respectively. Non-compliance matters accounted for another 54.
There were 20 Family Court appeals and one petty civil appeal disposed of as well. Of interest to the general public may be the fact that of the matters disposed of last year, 55.6 per cent were less than one year old and 74 per cent less than two years old at the time of disposition.
In keeping with our undertaking not to have any judgments outstanding for more than six months at the end of the law term, a concerted effort was made. I am happy to report that there were only two judgments outstanding for more than six months and they will be delivered before the end of 2014.
High Court criminal
The picture here is somewhat grimmer and for all of the reasons that I have been at pains to articulate in previous years. We had almost exactly the same number of trials although the fall in dispositions from 91 to 83 is accounted for by the fact of fewer guilty pleas. This is in the face of 259 new indictments being filed. What this suggests is that we are at the limit of our capacity if we choose to approach criminal trial procedure in the way that has become customary.
We simply cannot go on this way! I continue to plead for serious consideration of whether the system of trial by jury should be retained at least in its present form. What is clear to me is that it cannot work as currently deployed. Of course I will always continue to question the need for any form of preliminary enquiry process outside of the High Court in which the matter is to be tried.
I am pleased to report, however, that there are some positive developments on the horizon, which, if pursued to completion and full execution, can be of tremendous value. As we speak, a new and improved plea bargaining bill is being circulated for comment, and the Rules Committee is considering draft Criminal Procedure Rules that are intended to impose some structure and discipline on the case management process prior to and during trial.
Both of these reforms I hasten to add, will require the cooperation of the prosecution and the defence bar since, for the time being, effective sanctions for non-compliance are limited.
I have no apology for directly addressing those attorneys who continue to waste time and insist that the prosecution call every witness in person knowing that they have no cross examination but hoping perhaps that something fortuitous will turn up. It is not clever; it is just bad lawyering. Moreover, it is wasteful of judicial time and resources, disrespectful to witnesses and jurors, irresponsible and immoral!
Finally in the area of criminal procedure reform, I would urge a rapid introduction of videotaped caution interviews. It has had a dramatic effect on delay and the number of voir dires in other Caribbean jurisdictions. As has been pointed out before, voir dires occupy a considerable amount of trial time. Video taping of interviews also serves to protect the rights of persons in custody by ensuring that proper protocols are followed.
This results in fewer challenges at the trial stage. Since the passage of enabling legislation in St Vincent and the Grenadines, St Kitts and Nevis and Dominica in 2012 and 2013, there have been almost 400 such interviews in those three territories combined. To date there have been no successful challenges to any confession and significantly, Dominica and St Vincent report no accusations of police mistreatment of any sort. As expected, court delays have also been significantly reduced.
High Court civil
Turning now to High Court civil, new filings fell from 5,230 in 2012-2013 to 4,857 last year, while disposals fell from 5,245 to 4,407 (a 16 per cent decrease). This also represents a fall off in the disposition to filing ratio from 1.0 to 0.9. As I had predicted, the irresistible arithmetic has caught up with us.
There are only 24 hours in any given day and one cannot hear cases and write judgments simultaneously. Judges have really taken to heart the admonition to hear and determine cases with expedition. Of the CPR matters disposed of last year 61 per cent were disposed of within one year of filing and a total of 81 per cent in under two years.
I mentioned earlier the challenge we set ourselves to have no judgments outstanding for more than six months at the completion of the law term. There has been a Herculean effort on the part of the bench and while we were not 100 per cent successful, I want to commend those honourable judges and their teams for their tremendous effort.
There were 15 judgments outstanding for more than six months as of July 31, a fraction of one per cent of the total disposed of.
But we want to do better and we believe we have a way to do it. You may recall that last year I spoke about an expanded ADR pilot project aimed at early intervention in the hope of disposing of matters where possible and appropriate, without a trial. Well, as promised, the project has been completed and the results and analysis are in.
As anticipated, there was a very satisfactory settlement rate. Of the matters that went through the whole process, 56 per cent were settled outright and a further 11 per cent were partially settled. 98 per cent of participants reported that they would try mediation again.
While there was a more modest settlement rate of 31 per cent at the settlement conferences, a further 11 per cent settled before trial, no doubt influenced by the narrowing and/or clarification of issues achieved during that process. Parties overwhelmingly reported the process to be helpful.
This has given us the confidence, with the promised support of the Bar to make court annexed mediation and settlement conferencing an integral part of our civil case management process. To this end a draft amendment to the CPR is also now before the Rules Committee which, if agreed, is expected to come into force early in 2015 after appropriate sensitisation and training of the Judiciary and the Bar.
With concurrent changes in criminal practice and procedure which we also expect to be implemented in 2015, we can anticipate a transformed litigation landscape that, as far as the judiciary’s vision is concerned, would merely be the springboard for real innovation and not its culmination.
Matrimonial
Turning to the matrimonial jurisdiction, marriages aren’t doing to well in Trinidad and Tobago. Last year 2,824 new divorces were filed, down from 2,922 the previous year but there were 1,963 decrees nisi granted (up ever so slightly from 1,958 the previous year) and 2,260 decrees absolute. But at least they are getting out quickly, 93.3 per cent within a year of filing.
Probate
In the probate division there were 3,052 filings and 3,288 dispositions.
Magistracy
As usual, the magistracy handled the major volume of the load so far as the criminal justice system is concerned. There were 125,166 matters filed and 83,822 matters disposed of, an overall disposal to filing ratio of 0.67. This does not bode well for the future as we appear to have reached the saturation point some time ago. In that regard I should inform the nation that the Criminal Procedure Rules being considered by the Rules Committee would also cover Magistrates Courts proceedings.
The culture of adjournments must stop and while we invite all parties and stakeholders to cooperate as their timely inputs are critical to our processes, I expect that magistrates, duly trained and supported, will apply a firm hand and not cede control of the matters before them. You are our court users who often remind us that justice delayed is justice denied. That applies to both sides and all parties.
In terms of a breakdown by district, Couva, San Fernando (Madinah Building), Arima and San Fernando (Old Court) were the top performers on the basis of disposition ratios, followed closely by Chaguanas.
I cite this remarkable statistic because the latter three courts have been constrained to operate under very challenging conditions and yet have turned in very creditable performances. While in no way seeking to diminish the contributions of staff everywhere, I feel I should publicly acknowledge the efforts of the staff at these locations.
It is no secret that some staff at San Fernando have unfortunately taken action that we feel is unnecessary and unjustified, but I want to assure all judiciary staff and the people of Trinidad and Tobago that we will continue to work assiduously and within the law to address the problems that undoubtedly exist and we encourage staff and their representative union to work with us in the spirit of cooperation that we continue to embrace at this difficult time.
Beyond statistics
I have set out what I hope has been a useful synopsis of some aspects of our performance. But there is a more fundamental point to be made. It is true that the disposition of cases is a core function of the judiciary, but numbers of cases disposed of only tells a part of the performance story. We exist to provide a problem solving and dispute resolution service in a rapidly evolving environment. It follows that we must also evolve in order to retain relevance and public trust and confidence.
The theme of this year’s address and annual report, which informs our approach for the coming year was therefore very deliberately chosen—Reframing Performance Through Innovation. Innovation does not mean doing what we have always done, faster.
It includes doing something differently either because it is more effective (as opposed to merely efficient) or in response to a different environment or problem. It was Albert Einstein who observed that we are unlikely to solve any significant problems by using the systems and approaches that allowed them to develop in the first place!
Unfortunately, much of the conversation on “reform” has focused on how to get “better” at what we have been doing rather than whether we ought to be doing it at all. In the process, we have failed fully to appreciate the impact of changes in society and developments in information and communications technology and social media on the way in which we think, acquire information, communicate and make decisions.
In the information economy, the challenge is really abundance. This has several implications.
First is the fact that, since information is no longer stored and retrievable only at specific locations and nearly all human knowledge is accessible with a keystroke, being educated is not about having information in your head which most others don’t have, it is about the ability to synthesise and to use the available store of knowledge to solve real world problems. That means taking a serious look at our education system. Much of what we do is completely irrelevant to the modern working environment.
With regard to systems, as any economist will tell you, innovation and improved productivity cannot take place without a concurrent process of creative destruction. Some processes and functions will have to disappear. In other words, we have to stop doing things just because that is the way it has always been. That is the danger in a precedent-bound profession like the law. That is why, I respectfully suggest, we are struggling with criminal justice reform.
Moreover, the market ultimately decides what value is to be placed on certain competencies based on scarcity, rather than some notion of inherent hierarchical importance. This is a fundamental insight that seems lost on us in the management of the human resource in the public sector and, in my respectful view, continues to hamper the development of the judiciary through the inability to populate certain key posts at realistic remuneration levels.
At the moment, these are some of the management positions left unfilled largely or exclusively due to the inability to attract top talent by paying realistic salaries: deputy court executive administrator, Judiciary security manager, Family Court manager, human resources manager, court protocol and information manager, Judiciary buildings, plant and equipment manager, Court archivist and records manager, deputy Court archivist and records manager, senior human resource analysts and Court statistician. Other significant vacancies include pension and leave officers and systems audit and compliance. How can we effectively manage and pursue innovation in those circumstances?
It is not enough to speak glibly about a knowledge-based economy without grasping its significance. The most valuable asset is human capital. You pay me a salary because I rent you the intellectual capital I have accumulated. How does the nation value it? The total remuneration package of a high court judge including all allowances computed on a monthly basis adds up to about $81,000 per month.
Nobody I know in this Court works a mere 40 hour week but let us proceed on that basis. That works out at $500 per hour. You need to have a minimum of ten years’ call to be a judge. The schedule fee under the practice guide, for an advocate of ten years’ experience is $2,000 per hour. After hearing representations from the Bar, that is about to be raised to $2,300.
My rate works out to a little over $600 per hour. Dare I be so bold as to compare myself to senior counsel who are due to be raised from $3,500 to $4,000? Need I say more?
Or maybe I need to be more explicit. That is what we forgo at the moment with the only hope of some redress being a pension that would permit a decent standard of living. Exemption from a marginal income tax rate of 25 per cent does not even come close to bridging the gap that currently exists.
How is the judiciary expected to attract and retain top talent in those circumstances? Why all the wingeing when there is an attempt to improve terms and conditions, including pensions for judges. Is that how we value the judiciary? We can do better than that!
While we are talking about hiring judges, may I digress just a bit to talk about the process and criteria for hiring judges, which appears to be widely misunderstood. The current basic criteria for the appointment of judges were gazetted on April 13, 2000 and, while not exhaustive, include considerations of professional competence, integrity, temperament and experience.
Significantly, the latter two categories are further subdivided to include, among other things, an assessment of the candidate’s social awareness, understanding of people and society and previous public and community service.
Logically, of course, activism at the grassroots level, whether associated with an NGO or political party or otherwise, may be relevant in that regard and is certainly not incompatible with subsequent judicial appointment. Indeed, one of our recently retired judges was a former government senator and cabinet minister. What is not expected, for reasons that are obvious, is for persons to move directly from political office to the bench without a suitable cooling off period.
Further, it is a widely held view that, as possessors of particular training and knowledge, experienced attorneys have a right and some would say an obligation to contribute to informed public debate on matters of general national interest. Indeed, that is one way in which maturity, social awareness and understanding of the society may be demonstrated.
Judges do not just drop from the sky with blank minds. Like any other citizens they are entitled to vote and will no doubt have personal views on a variety of matters. What is expected of them is that once they assume office, they will be true to their oath and put aside any personal preferences in service of their duty to hear and determine matters impartially and in accordance with the law.
Of course, they are also expected, once in office, to refrain from commenting otherwise than where it is necessary in their judgments, on matters of policy or political affairs so as to preserve public confidence in the independence and impartiality of the judiciary.
The process of continuing education in the judiciary therefore includes regular training for all judicial officers on impartiality, specifically the detection and avoidance of internal bias. Ultimately, to be sure, the real test is in the quality of the reasons which judges are required to give for their decisions.
As regards the selection process, applications are invited by way of public advertisement. Candidates are shortlisted based on their resumes. They are interviewed by the JLSC to determine their suitability for appointment. A detailed form is sent to the referees who are requested to provide written assessments of the candidate in several areas including those pertinent to the gazetted criteria.
The names of candidates who are successful at the stage of the interview and whose references are satisfactory are then submitted to the President of the Law Association for comment. It is expected that senior and responsible members of the bar who know something about the candidates will be canvassed and the president of the Law Association will then report to the Chief Justice whether any principled concerns or objections have been raised. I might add at this stage that in terms of the most recent appointment there were none.
If there are no negative reports that cause the JLSC any significant concern then the candidates undergo psychometric testing and finally, a special branch security vetting which is intended to uncover any unsavoury or illegal activities or associations that would be incompatible with judicial office.
It is only upon the satisfactory completion of all of this rigorous process that the JLSC would be prepared to recommend to His Excellency the President that an Instrument of appointment be issued. I hope this brief diversion will serve to clear up some of the misconceptions apparent in recent public comments.
I return now to the implications of the information technology revolution. Another major implication of the abundance and accessibility of information is that it cannot be controlled. The fundamental insight which we can glean from the Arab Spring and observation of our own society is that nobody relies on official channels to acquire information and to make decisions because they don’t trust authority and they don’t need to rely on official sources to get information.
This has real world implications for, among other things, the jury system. Jury contamination is not just about criminals making threats and offering inducements. How do we stop people from doing their own online research? This is a real problem in many jurisdictions, some of which have resorted to imprisoning jurors who ignore warnings to confine themselves to information emerging in the courtroom.
How on earth could we effectively police that? They are not going to tell you if they’re doing it. And if there is one thing we know about human behaviour it is that once you forbid something it arouses the curiosity of a significant proportion of people. I seriously doubt whether much of the existing systems that evolved when the internet was not even contemplated can survive the new environment.
I cite this as merely one example of how the debate on criminal justice reform needs to be broadened and more nuanced and processes that served us well in the past have now become the problem. Thinking out of the box must be more than a cliché.
The changing information technology landscape has also triggered evolutionary change in the way in which we regard information and our expectations in relation to secrecy, transparency and access. This of course has repercussions for many things from our recruitment processes to how we manage and manipulate information and how we manage people and processes through redefined roles and responsibilities.
I have already alluded in the past to the fact that the whole case flow management process is really an information flow management process. Technology now allows us to store, access, retrieve and manipulate information in unprecedented ways.
The real challenge is to tap into and unleash the reservoirs of creative potential that exist within our staff, our stakeholders and, to the extent that societal healing and restorative justice are a part of the vision, all our court users (see in that latter regard, the Drug Treatment Courts as an example). In other words, we have to reframe the concept of “performance.”
One innovative approach towards achieving that objective was explored in November 2013 when staff members from every region and department of the judiciary, elected by their peers, joined management, judicial officers and two dozen representatives from our stakeholder organisations such as the Ministry of Public Administration, the Prisons Service and Family Services for three days at the Judiciary Appreciative Inquiry Summit at the Hilton hotel.
For three days participants from every court, district and unit, including the Chief Justice and the Court Executive Administrator, were actively engaged in the self-exploratory process of: Discovery, Dreaming, Designing, Destiny. To my knowledge, this was the first time that appreciative inquiry had ever been used by a judicial organisation and, to our knowledge, it was also the first time this approach had ever been tried on a large scale in Trinidad & Tobago.
This appreciative inquiry (AI) model was developed at the Weatherhead School of Management, Case Western Reserve University in Cleveland, Ohio. The methodology encouraged innovation and paid off handsomely, since it generated considerable discussion, interest and enthusiasm.
Participants shared their vision of the ideal Judiciary and focused on the steps required to reach that goal. The entire assembly then voted for the projects each member considered most important to contribute to the transformation of the institution. Out of this exercise, ten change teams were created and have been working on core areas all aimed at “identifying, sustaining, and strengthening the affirming qualities of the organisation.”
Some of the areas covered:
• Child care
• Closed HR and greater autonomy in Judiciary staffing
• Continuous training and development
• Electronic filing and electronic payments
• Personalising the Judiciary image
• Real-time accurate employee information
• Staff welfare and appreciation
• Establishing standardised court structures
• Working conditions
• Advancement of technology
The participants’ level of commitment to the organisation and to each other, the outflowing of creativity in the manifestations of their dreams for the institution and the practical, organised, systematic structuring of plans for the future to make these dreams a reality astounded and energised me and all those present.
There is no shortage of innovative potential in the organisation and across the public service; we need to find ways to unleash its power. In the new law term, the change teams created at the summit will continue their work assisted by training from facilitators on how to handle the change management process.
Social media
In the area of social media, we are aware that the way in which people source information about the world and matters of interest to them has changed. Our methods of educating the public and making our services and processes transparent and accessible as part of our commitment to accountability, relevance and attracting public trust and confidence, must change.
Plans are underway to establish the Judiciary’s social media presence. In the coming year enabling technology will be utilised to create a presence on Facebook, Twitter, Instagram and Linked in.
This will be supported by the Judiciary’s social media policy which will address content management, privacy and overall brand management to ensure the integrity of the messages provided through the media. Research indicates an absence regionally of social media presence by Caribbean judiciaries. This will be an innovative introduction to the regional landscape.
Solution oriented courts
Many of our ongoing initiatives reflect the commitment to relevant and innovative change.
The introduction of drug treatment and youth drug treatment courts and the implementation of court annexed mediation as a part of our normal process are indicators of the Judiciary’s willingness to embrace change in a reflective and productive way in order to ensure that all the citizens of Trinidad and Tobago receive justice in a timely and life-giving manner.
With regard to the Drug Treatment Court, I am proud to announce that the first graduation ceremony was held in July for participants who successfully completed the programme.
While the numbers are still modest, the true impact of programmes such as this is measured in the transformation wrought in the lives of participants who, for the first time, begin to tap into their hitherto dormant potential. The valedictorian of the class spoke eloquently for 20 minutes without notes.
Here was a gentleman who after six decades of life, the majority of which had been spent on the streets and in the grip of drug dependency, not only tested drug free for the entire programme but is now enrolled in a counselling course at the UWI and is getting straight As. He is already giving back by way of support and encouragement to current participants and fellow alumni.
In June, the Steering Committee hosted a sensitisation workshop for magistrates, clerks of the peace, probation officers, police officers and other agencies that will support the operation of the Tunapuna DTC. A further sensitisation workshop was undertaken in July 2014, on the development and implementation of Juvenile DTC’s (JDTC’s).
Participants included teams from Jamaica, Barbados and Trinidad and Tobago. The workshop was facilitated by the Juvenile Drug Treatment Court team from Dade County, Miami. These opportunities were all made possible due to the MOU which was signed between the Ministry of National Security and CICAD in September 2012 and expires this month. Efforts are being made to have it renewed.
As the Steering Committee continues to plan for the next year, there are a number of priority areas for implementation. Among them are:
• The start up of the Tunapuna DTC;
• Finalisation and approval of the Juvenile Drug Treatment Court policy document;
• Increased public sensitisation on the DTC—including sensitisation of the executive council of the Tobago House of Assembly, and the public health sector;
• Formation of an alumni association to support the graduates;
• Ongoing training and capacity building opportunities;
• Support for our regional member states in the establishment of their drug treatment courts; and
• Discussion on the formation of an Association of Caribbean Drug Treatment Courts.
Trinidad and Tobago Judicial Education Institute
I turn now to the Trinidad and Tobago Judicial Education Institute.
As you might well imagine, none of this innovative and transformative work could be done without sustained investment in our human capital by way of continuing education. The TTJEI continues to restructure its training programmes to bring the Institute in line with best practice internationally in judicial education.
To this end, the focus of the institute has moved towards training that is directed, informed and delivered by local faculty for local officers. We are confident that we can call upon our own depth of knowledge, our own lived experience and our own accumulated wisdom.
An expansion of the activities of the institute occurred first in November, 2013, when the TTJEI assumed responsibility for the organisation and implementation of the Appreciative Inquiry Summit.
In April, 2014, for the first time, senior case management officers joined the registrars for a residential weekend retreat to discuss ways to improve case management processes and procedures. The response of these staff members to this training has encouraged the board of the TTJEI to endorse further outreach to staff in the Judiciary.
Another noteworthy arrival on the JEI calendar was the orientation programme for new judges carried out in September 2013. For the first time, recently appointed judges were given the opportunity to interact with their more senior colleagues to discuss issues such as ethics, case management, team management and court technology.
It is expected that this programme will be repeated in the next law term and be expanded to include other judicial officers such as magistrates and registrars.
Training for management officers has occupied the attention of the institute for much of the year. Apart from the continuation of “Difficult Conversations” workshops and a series on time management, the JEI also provided a small group of senior managers with a series of workshops in leadership conducted by a team from the Weatherhead School of Management out of Case Western Reserve University in Cleveland, Ohio.
These workshops included sessions on emotional intelligence, mindfulness and creativity. It is expected that the Weatherhead team will continue to offer their services to Judiciary staff, focusing in particular on the change management teams created at the Appreciative Inquiry Summit.
In an effort to move forward on its goal of becoming a center of judicial education nationally and regionally, the construction and refurbishing of a training centre on the ground floor of the Judiciary Administration Building on Duke Street has been completed. It is a fully equipped, multi-media facility with the capacity to train fifty persons in one session through the use of state-of-the-art equipment and training methods and is already in use.
Earlier this month, with the assistance of a distinguished team from the University College London Judicial Institute, the only academic institution in the Commonwealth devoted to evidence based research and teaching on judiciaries and judicial processes, twenty-four persons from the Judiciary of Trinidad and Tobago, including key non-judicial offices received training as trainers themselves with the expectation that they will, individually and in teams, develop curricula, conduct workshops, seminars and lectures for their colleagues and all staff of the organisation.
Challenges
If you have been listening attentively, you might be wondering how the judiciary has managed to accomplish anything at all if key positions remain unfilled because the pay is so unattractive. The truth is that we are still operating far below our potential because progress and innovation is being stifled by the fact that, historically, we are consistently under-resourced. It is only because of the extraordinary dedication and loyalty of our staff that we remain vibrant.
The problem, in my respectful view, lies in the public sector financing model that places the judiciary in competition with executive ministries both in terms of bidding for human resources and for budgetary allocations. The problems experienced at the San
