President of the Criminal Bar Association Pamela Elder, SC, was being “political” when she described the Administration of Justice (Indictable Offences) Act of 2011 as seriously flawed and a recipe to create chaos in the criminal justice system. So says former justice minister Herbert Volney, who questioned Elder’s “sudden change of mind.” In a Sunday Guardian story Elder was quoted as saying there were too many concerns with the act, which is intended to abolish preliminary inquiries and thus clear the backlog in the magistrates courts and speed up the pace of the judicial process. The administrative changes required by the act are due to come on stream next month, but none of the extra staff or facilities needed have been put in place.
But Elder believes the law itself is fatally flawed and unworkable. She said, “The concerns are so serious that I have penned and dispatched a letter to the Minister of Justice, with copies to the Chief Justice, the Attorney General and the Minister of Legal Affairs.” In an interview yesterday Volney said: “I want to question Mrs Elder’s motive at this time. I want to question whether there is a sure and certain connection between her new-found concerns and her recent retainer by the Attorney General.” He said Elder and a team of senior counsel were instrumental in examining the act when it was in the bill stage and went through it clause by clause.
Volney added, “I can say that I read with dismay and a sense of betrayal the statements made by Mrs Elder at this late stage in the implementation process. Her statement is not a legal statement. It is a political statement." He said he sensed that once the bill was passed, a group of criminal lawyers who “got rich on the backs of the poor” would suddenly come to the realisation their bread and butter would be diminished. The act, Volney said, was modelled on the St Lucia legislation and had worked very well in that country. Saying when August 2 arrived the proclamation was expected to be again delayed by Justice Minister Christlyn Moore, Volney described Moore, his successor, as a “phenomenal failure” who must be immediately fired.
“All this effort would amount to nought,” he added.
Act needs to be reviewed—Elder
Contacted for a comment, Elder said she would not “dignify the former justice minister’s scurrilous comments about motive with a response.” Asked to be more specific about her concerns over the act Elder said one major issue she had related to the reception of children’s evidence. Under the Children Act, witness statements by children are not to be sworn. But the Administration of Justice Act contradicts this by saying all statements must be sworn. “The act makes no provision for the admissibility of the evidence of children,” Elder explained. “This is because evidence before the master is to be in the form of witness statements which are required to be sworn. “Pursuant to the Children Act the evidence of children is to be unsworn,” Elder added. She said that and other concerns were raised previously.
In March 2011, Elder said, Volney asked the Criminal Bar Association to submit comments and the association submitted a 91-page document detailing its concerns. She added: “I had written since last year advising the proclamation be delayed and I suggested the implementation date be delayed after consultation with all stakeholders concerning necessary amendments. “On November 8, 2012, I attended a meeting at the Justice Ministry where other stakeholders were present. That meeting began at 9.35 am and ended at 3.55 pm. Concerns were expressed about this act and the meeting was adjourned to Friday November 23, 2012.” She said on December 18, 2012 an e-mail was sent advising the implementation in January 2013 was unrealistic and should be delayed and that discussions be resumed with all stakeholders. Elder said she also was willing to sit down with anyone, including Volney, to point out the flaws.