Twenty years ago a young reporter named Ed Fields (the son of a respected policeman) wrote a series of articles about our dysfunctional legal system.
Not only do many of the deficiencies he recorded still exist, but abuse of the system has escalated to near-crisis levels. And the political class (although mostly lawyers) seems unable or unwilling to come to grips with the problem.
Every brochure and web page featuring the Bahamas proudly describes our British-inherited legal and electoral systems. Parliamentary democracy and the rule of law are two of our top selling points, it seems.
But scratch the surface, and you will find a different reality. Among the issues that were cited a generation ago are…
No verbatim court records, overworked magistrates, poor facilities, chronic case backlogs, an understaffed and underpaid legal department, unqualified and poorly trained court officers, no law reports, no national legal aid scheme, and no readily available criminal or court statistics.
Incremental improvements have been made…such as new rules that encourage out-of-court civil settlements, or the use of stenographers in the upper courts. But with an increase in population of over 100,000, a rising crime rate and official neglect of social issues over the past 20 years, many of the problems have grown much worse.
One of the most persistent complaints is the case backlog. A recent Amnesty International report said the Bahamas has one of the world’s highest imprisonment rates because so many detainees are awaiting trial for minor offences.
“Many such prisoners have been detained for longer than they would have been sentenced to had they been convicted,” the report said.
Amnesty says the backlog is caused by the courts adjourning cases where the accused is unrepresented (due to lawyers over-booking themselves).
One judge we spoke to agreed: “Very often the delays are caused by lawyers not being ready for trial. Litigants need to put more pressure on their lawyers.”
Fiddlesticks, says Bar Council chief Wayne Munroe: “We inventoried the civil and criminal lists and while there may be, say, 3,000 cases filed, there are not 3,000 ready for hearing. Many cases are scheduled that are dead or going nowhere, which is a management problem.”
He blamed overcrowding at the prison on a “political directive” as to how the courts should treat bail applications, adding that a high remand rate was not the same as a court backlog. To most people, this may seem like hair splitting, but it is a common view among lawyers.
“It’s a constitutional abuse to hold people in prison on minor offences without access to bail,” former FNM Senate Leader Henry Bostwick told Tough Call. “And the previous government has to take some responsibility for that.”
However, both men admitted to a backlog in criminal cases because prosecutions often could not proceed with their cases… either because witnesses can’t be found, or defence attorneys don’t show up.
Mr Munroe attributed the unreliability of defence lawyers to economic necessity: “It’s a circuitous system like the airlines. If lawyers didn’t overbook costs would surely rise.”
But others say that is a cop-out: “Something is wrong when a lawyer double books to represent two clients in two courts at the same time. One client is likely to be left without representation, or that case will have to be adjourned because the lawyer is not available.
“This contributes to the prosecution not being able to put it’s case together. Witnesses (especially those with jobs) get tired of showing up for cases that don’t proceed. Eventually, they will stop showing up, and the prosecution will not have the evidence.”
But far more scandalous than the attorneys who ‘work the system’ to their own selfish ends is the more and more frequent collapse of serious prosecutions due to witness tampering or official incompetence.
“What has become insidious these days is that witnesses are being tampered with in broad daylight,” Mr Bostwick said. “Criminals are brazenly buying off or intimidating witnesses in our courts. And the quality of police prosecutions is often poor.”
Just recently, no less than three accused murderers were released because witnesses failed to appear. This attracted little notice until a police witness decided not to show up and the defendant was acquitted. A “full investigation” is supposed to be underway, but we won’t hold our breath for the results.
The frightening fact is that these are not isolated events. According to recent reports, some 40,000 criminal warrants are outstanding – about 2000 for serious crimes. The eight policemen assigned to this duty with no transport are said to be “overwhelmed” by the number of warrants they have to serve. And the records are not even computerised.
Anecdotal accounts of the state of our justice system are even more astounding. For example, one murder accused was recently freed because the prosecution failed to make a case, despite several eyewitnesses to the killing, which took place in broad daylight at a public place.
“I had to attend hearings to confirm that the man in the photo was my husband no less than six times before they got their act together,” the victim’s widow told Tough Call.
“First they couldn’t find the photos, then they couldn’t find the photographer, then they couldn’t find the evidence I gave, so I had to do it all over again. The other times, the case was just adjourned.
“One eyewitness fell apart in court, saying she didn’t want to be involved. Two other witnesses simply disappeared. And a lot of evidence was never followed up properly, such as the defendant’s variable alibi. And it was months before I found out the man had been released.”
Another correspondent reported that a retailer she knows is so fed up with the court system that he relies on paid bouncers to take shoplifters caught in the act to a quiet spot and beat them. This is a bit of self-help, otherwise known as vigilantism. And it gives an indication of what is in store for us down the road.
The Bahamas has an “unacceptably high” 50 per cent acquittal rate, the Bar Council says, partly because prosecutions are so weak.
A contributing factor is the sheer number of prosecutions that are launched, often just to avoid charges of collusion or corruption. Experts say we don’t have the resources to prosecute every case and must be more selective.
But sometimes the prosecution does get its act together, as in the Tennel McIntosh murder case, when DNA samples found on a victim were proved to come from the defendant. The jury went on to acquit McIntosh anyway, although he was later convicted of manslaughter in the killing of another female visitor.
The frustration of fixing a trial date to actually resolve a legal matter was described by one lawyer: “I am in court next week on the fourth attempt to have a matter brought to trial. The first time, the defence sent a note saying he was going to be ill for an entire week. The second time, the court took us off the calendar. The third time ? months later ? the defence said his office was swept by tidal surges and hurricane floods. This sort of thing goes on all the time”
And any reasonably law-abiding citizen who has the misfortune to come into contact with our legal system is in for a big shock, sources say:
“The court system here sucks. I was appalled at the level of expertise. And I feel terrible about all the cases out there which are being messed up or ignored or slipped by because somebody is related to someone or had witnesses intimidated.”
According to one well-connected political editorialist, the problems are far-reaching.
“They have to do with the quality of talent in the attorney-general’s office…with the management of that office. They have to do with the police force…They also have more broadly to do with what appears to be a general breakdown everywhere in the public service: no regard for rules, no regard for the work ethic, no regard for process. It is Bahamas-wide. It is endemic.”
In response to the latest outrages, the attorney-general says he will make witness tampering illegal. No doubt those eight overworked, pedestrian police officers responsible for serving warrants will breathe a sigh of relief at this imaginative solution.
We can’t enforce a fraction of the laws we already have, so adding more is probably not the best bet.
Some experts have called for alternatives to prison sentences for non-violent, first-time offenders. Amnesty recommends an immediate public audit of all untried prisoners, with the courts giving priority to these cases.
Other suggestions include a review of the Bail Act to bring it in line with international standards on pre-trial detention, and the forced publication of annual statistics detailing court proceedings (including cases on remand, cases heard and their outcome).
Meanwhile, the government is hiring more lawyers (to add to the 30 in the legal department now), and has “begun a discussion” on restorative justice. This is a relatively new concept that aims at offender accountability, reparation to the victim and full participation by the victim, offender and community in the process to achieve justice.
We spend about $20 million a year on the attorney-general’s office, the judicial department and the magistrates’ courts. A proper legal aid system would add another $8 million to that budget, some say, so this is unlikely to happen any time soon. Currently, legal aid is available only for serious offences in the higher courts.
“This is the biggest injustice we face and it is purely a function of money,” Mr Munroe admitted. “But having said that, I wouldn’t spend our limited budget on more aid.
“I would first provide proper housing for the courts ? for which plans already exist ? the worst problems are our dilapidated court facilities and the lack of trained support staff.
There are currently 19 magistrates’ courts and a dozen supreme court justices, as well as a full-time court of appeal with four senior justices.
“Then I would reform the civil service so that other departments can’t poach trained judicial personnel” he continued.”And we should pay into the system properly ? probation, police and prison officers are all part of the system.
He also pointed to the wider question of how young people are (or are not) being socialised today: “These are the customers that the judicial system is processing. We must step back and look at our entire society.
The column ‘Tough Call’ by Larry Smith is published in The Tribune every Thursday and is reprinted here as a courtesy. Mr. Smith founded and successfully grew an advertising agency over 20 years. Under his direction Media Enterprises diversified into short-run commercial printing and publishing, and is now the largest non-fiction book wholesaler in the Bahamas. He has 30 years experience as a journalist and publicist and has contributed numerous articles and columns to the Bahamian press. A former reporter at the Nassau Guardian, local correspondent for Reuters and editor at the Bahamas News Bureau, he conceived and edited the Bahama Almanac (published 2000 by Media Enterprises), wrote the commentary for Mike Toogood’s Portrait of an Archipelago (published 2004 by Macmillan Caribbean), and edited the Bahamas Environmental Handbook (published 2002 by the government). In 2003 he took a year’s leave of absence from Media Enterprises to lead a transition management team at the Nassau Guardian after the paper was acquired by local investors. After leaving the Guardian he was contracted by the Tribune as online manager/editor and columnist. He has a degree in political science and journalism from the University of Miami.