In Trinidad and To­ba­go every­body has a pre­scrip­tion for mal­adies they have not prop­er­ly in­ves­ti­gat­ed and do not un­der­stand. Just pick up the pa­pers or lis­ten to the talk shows and you will know what I am talk­ing about.

That is why I come here year af­ter year and give the same speech and noth­ing hap­pens. That is why the coun­try has spent up­wards of 300 bil­lion dol­lars in the past five years and we have not yet turned sod on a sin­gle new ju­di­cial fa­cil­i­ty.

That is why we have not yet elim­i­nat­ed pre­lim­i­nary in­quiries en­tire­ly, why we still have ju­ry tri­als, why we are still in­car­cer­at­ing peo­ple for two mar­i­jua­na cig­a­rettes, why we still have a death penal­ty we are nev­er like­ly to ef­fec­tive­ly im­ple­ment, why we still have a high­est ap­pel­late court that one can­not ac­cess un­less you are very rich or you are charged with mur­der and some­one agrees to rep­re­sent you for free.

That is why the ju­di­cia­ry has not been able to re­alise many of its strate­gic ob­jec­tives and prop­er­ly dis­charge its man­date be­cause we do not yet have re­al fi­nan­cial au­ton­o­my to man­age the things that are with­in our purview. That is why, and I do feel strong­ly about this, peo­ple need to stop blam­ing us for those as­pects of the jus­tice sys­tem that are out­side our con­trol.

We need a lit­tle com­mon sense here. What can I do about low crime de­tec­tion rates or in­ad­e­quate ev­i­dence or no prop­er de­ten­tion fa­cil­i­ties or slow foren­sic analy­sis or a short­age of at­tor­neys at the crim­i­nal bar or pris­on­ers ar­riv­ing late for court de­spite our ad­mo­ni­tions?

We have some re­al sys­temic prob­lems that will not be solved by 'old talk' but which re­quire mov­ing be­yond con­ven­tion­al wis­dom and ap­ply­ing com­mon sense on the ba­sis of the in­for­ma­tion and ev­i­dence we al­ready have or are able to gath­er. That is why we col­lect sta­tis­tics. My re­port­ing to you serves the sec­ondary al­beit nec­es­sary pur­pose of ac­count­abil­i­ty but the pri­ma­ry rea­son for gath­er­ing sta­tis­tics is to form the ba­sis for com­mon sense de­ci­sion-mak­ing.

Be­fore I go in­to the re­port­ing of our ac­tu­al sta­tis­tics let me il­lus­trate by a few ex­am­ples. We of­ten hear the ex­pres­sion 'jail ent make to ripe fig.' That's con­ven­tion­al wis­dom. So col­lec­tive­ly we turn a blind eye to harsh and in­hu­mane prison con­di­tions when all the em­pir­i­cal re­search tells us that there is a pos­i­tive cor­re­la­tion be­tween a more hu­mane, restora­tive ap­proach to in­car­cer­a­tion and low­er rates of re­cidi­vism. The on­ly pun­ish­ment in­tend­ed by a cus­to­di­al sen­tence should be the de­pri­va­tion of lib­er­ty. That's com­mon sense.

Giv­en the avail­able ev­i­dence of the cor­re­la­tion be­tween im­proved lit­er­a­cy and re­duced crim­i­nal­i­ty and re­cidi­vism, it is com­mon sense to spend mon­ey on ed­u­ca­tion and di­ver­sion­ary pro­grammes which cost less than the $13,000 per month it costs to keep a pris­on­er be­fore re­cy­cling him (and it is usu­al­ly a him) in­to so­ci­ety with se­vere­ly lim­it­ed prospects for pro­duc­tive em­ploy­ment. How many peo­ple in this so­ci­ety even work for as much as $13,000 per month?

Con­ven­tion­al wis­dom says 'lock them up and throw away the key.' Com­mon sense tells us that we can­not in­car­cer­ate our way out of our so­cial prob­lems and crime in gen­er­al be­cause many stud­ies in­ter­na­tion­al­ly show a pos­i­tive cor­re­la­tion be­tween longer sen­tences and high­er rates of re­cidi­vism as well as be­tween high­er over­all rates of in­car­cer­a­tion per capi­ta and high­er rates of re­cidi­vism. The ex­pla­na­tions re­quire more time than I have to­day but we need to be mind­ful of these re­al­i­ties or as we say col­lo­qui­al­ly, we will just keep spin­ning top in mud!

Con­ven­tion­al wis­dom says we need more re­li­gion. Com­mon sense tells me we need more re­spect for fun­da­men­tal hu­man rights be­cause stud­ies do not sup­port the no­tion that pro­fessed ad­her­ence to any recog­nised re­li­gion is as­so­ci­at­ed with re­duced rates of vi­o­lent crime.

In fact, there is a con­sid­er­able body of ev­i­dence to the con­trary. Again the ex­pla­na­tions are com­plex, but my own ob­ser­va­tion is that we of­ten use re­li­gion to ac­cen­tu­ate dif­fer­ences rather than com­mon­al­i­ties and 'oth­er­ness' be­comes the jus­ti­fi­ca­tion for in­tol­er­ance, con­dem­na­tion, judg­ment and ul­ti­mate­ly, op­pres­sion and vi­o­lence.

Per­haps rather than seek­ing to im­pose up­on our con­vert oth­ers to our own world-view we should first ad­dress the dis­con­nect be­tween what we preach and how we live. Last­ly on this is­sue, as we con­tem­plate con­sti­tu­tion­al and leg­isla­tive re­form, we must ask our­selves whether we do not prac­tice sys­temic vi­o­lence when we en­dorse laws that pun­ish on the ba­sis of 'oth­er­ness.'

Per­mit me to turn now to our per­for­mance sta­tis­tics in or­der to place in­to con­text some of the com­mon sense pro­pos­als that the ju­di­cia­ry would like to im­ple­ment:

HIGH COURT (Crim­i­nal)

There is good news and there is bad news. Last year, not in­clud­ing mat­ters in which there was a hung ju­ry, the judges of the High Court dis­posed of 130 Crim­i­nal In­dict­ments. This rep­re­sents a 51% in­crease over last year and a 32% in­crease over the six-year av­er­age. It is al­so the high­est clear­ance rate over the past six years and it was achieved de­spite the fact that one tri­al has oc­cu­pied a judge for the en­tire pe­ri­od and there have been a num­ber of tri­als last­ing for months.

When we con­sid­er the time to dis­pos­al from fil­ing, 57% of the mat­ters were dis­posed of with­in three years, 67% with­in four years and 86% with­in five years. For this I must com­mend the judges for the ex­tra­or­di­nary ef­fort that they put in.

The bad news is that there were 190 new in­dict­ments filed so we are still falling fur­ther be­hind. Over the past few years the num­ber of per­sons await­ing tri­al for mur­der has risen to over 500. Com­mon sense tells me that the death penal­ty is not the so­lu­tion.

Apart from the du­bi­ous­ness of its val­ue as a de­ter­rent, do we re­al­ly be­lieve, as­sum­ing that a sig­nif­i­cant frac­tion of those per­sons are found guilty, that we will be able to hang sev­er­al hun­dred peo­ple or that, if we tried, we could stom­ach it? What are we go­ing to do, sched­ule one per day, or do it in groups? So what is the re­al prob­lem and what do we do? The prob­lem is one both of process and of ab­solute ca­pac­i­ty.

On the process side about 15% to 20% of sit­ting time is lost ow­ing to ju­ry man­age­ment is­sues such as ill­ness, ex­ams, fam­i­ly fu­ner­als, late­ness etc. This does not in­clude hav­ing to traipse ju­rors in and out of the court­room every time coun­sel want to make a le­gal sub­mis­sion. At the end of all that, there is a sig­nif­i­cant per­cent­age of hung ju­ries, which means we have to start the whole thing over again. What is com­mon sense telling us here?

On a pos­i­tive note, we are tak­ing steps to ad­dress the cul­ture of ad­jour­ments and at­tor­ney con­trol over pro­ceed­ings by in­tro­duc­ing some dis­ci­pline in­to the tri­al process. I am hap­py to an­nounce that, af­ter ex­ten­sive con­sul­ta­tion and with the co­op­er­a­tion and as­sis­tance of ju­di­cial of­fi­cers, the DPP, Le­gal Aid, the CPC and the bar the Rules Com­mit­tee has for­mu­lat­ed and ap­proved Crim­i­nal Case Man­age­ment Rules that will fa­cil­i­tate ear­ly dis­clo­sure and dis­pos­al of pre­lim­i­nary is­sues, im­pose stricter time lines and im­pose a pos­i­tive oblig­a­tion on all par­ties, in­clud­ing the ju­di­cial of­fi­cers to as­sist in pro­gress­ing cas­es in ac­cor­dance with the over­rid­ing ob­jec­tive of deal­ing with cas­es just­ly and ex­pe­di­tious­ly. Train­ing is to com­mence short­ly and we ex­pect to be up and run­ning in ear­ly 2016.

Af­ter a suc­cess­ful ex­per­i­ment with Goodyear Hear­ings, in­clud­ing an un­usu­al for­ay by the Chief Jus­tice on the tri­al bench, I have now is­sued a prac­tice di­rec­tion to fa­cil­i­tate more wide­spread adop­tion of this pro­ce­dure.

Goodyear Hear­ings, or Max­i­mum Sen­tence In­di­ca­tions as the lo­cal ver­sion is now called, are a pro­ce­dure where­by, at the re­quest of the ac­cused who has com­mit­ted an of­fence, the Court will give a bind­ing in­di­ca­tion of the max­i­mum sen­tence he/she is like­ly to re­ceive in the event of a guilty plea on the ba­sis of fac­tu­al ad­mis­sions ad­vanced vol­un­tar­i­ly by the ac­cused and agreed by the pros­e­cu­tion. Sig­nif­i­cant­ly, the plea must be made with­in a spec­i­fied time oth­er­wise the guar­an­tee is lost.

We an­tic­i­pate that per­sons who have been in re­mand for pe­ri­ods ap­proach­ing their like­ly sen­tence will uti­lize this pro­ce­dure. Al­ready con­sid­er­able in­ter­est has been gen­er­at­ed. When utilised in con­junc­tion with the re­vised Plea Bar­gain­ing leg­is­la­tion, we an­tic­i­pate a sig­nif­i­cant re­duc­tion in the back­log.

The re­al­i­ty is that for many peo­ple on re­mand fair and sus­tain­able pros­e­cu­tions for the of­fences charged may no longer be pos­si­ble be­cause wit­ness­es may have died or are no longer avail­able or the qual­i­ty of ev­i­dence has de­te­ri­o­rat­ed over time or for oth­er good rea­son.

Com­mon sense sug­gests, as I have been ad­vo­cat­ing for some time, that a com­pre­hen­sive ex­er­cise be un­der­tak­en to re­view all mat­ters be­yond a cer­tain age, dis­con­tin­ue those pros­e­cu­tions that are no longer sus­tain­able and uti­lize the plea bar­gain­ing pro­vi­sions for oth­ers, per­haps for pleas to less­er of­fences where it is jus­ti­fi­able in law based on the state of the ev­i­dence. But we can't bring the cas­es, that is for the DPP and the de­fence to work out.

On the ca­pac­i­ty side, we sim­ply do not have enough pros­e­cu­tors and de­fence at­tor­neys to deal with the mat­ters in the sys­tem. My at­ten­tion was re­cent­ly drawn to a tele­vi­sion pro­gramme in which an at­tor­ney was com­plain­ing about de­lays in the court and the fact that he had over 100 clients await­ing tri­al for mur­der. Well let's ap­ply a bit of com­mon sense. Would more judges or courts solve that?

Even if we had a 100 court­rooms and judges wait­ing to try them, if he is en­gaged in one tri­al, then the oth­er 106 would have to wait un­til he got around to them. Any­body who keeps a 100 mat­ters be­comes a part of the prob­lem rather than a part of the so­lu­tion. At the same time we hear that it is dif­fi­cult to make a liv­ing at the crim­i­nal bar.

The work has to be shared around and peo­ple have to be giv­en the op­por­tu­ni­ty to de­vel­op in crim­i­nal law. Now do we un­der­stand why I have been clam­our­ing for a Pub­lic De­fend­ers of­fice? If we at­tract more lawyers to a crim­i­nal prac­tice, then ob­vi­ous­ly, al­though we know that the coun­try is fac­ing dif­fi­cult eco­nom­ic times there must be a com­mit­ment to pro­vid­ing the long promised new phys­i­cal plant as a mat­ter of high pri­or­i­ty?

Now do we un­der­stand the need for re­al fi­nan­cial au­ton­o­my so that those who live with and un­der­stand the prob­lems can set the pri­or­i­ties? Af­ter all, it's just com­mon sense!

HIGH COURT (Civ­il)

New fil­ings were down from 4857 in 2013-2014 to 4716 last year. This is be­low the six-year av­er­age of 5089 and in­dica­tive of a steady down­ward trend over the past four years. I do not know whether this is due to a per­cep­tion that the Courts are not as ef­fi­cient in dis­pos­ing of mat­ters, in­creased util­i­sa­tion of al­ter­na­tive dis­pute res­o­lu­tion mech­a­nisms or oth­er fac­tors. We need to re­search that. In any event, what is clear is that dis­pos­als are down both in ab­solute terms (from 4407 to 3905) as is the dis­pos­al to fil­ing ra­tio, which has de­clined from 1.0 in 2011-2012 to 0.9 in 2013-2014 and now stands at 0.8. It is nev­er­the­less of some com­fort to re­port that of the mat­ters dis­posed of dur­ing the last law term 84% were dis­posed of with­in two years of fil­ing. That con­tin­ues to be a re­mark­able achieve­ment for which the judges must be com­mend­ed. I must al­so thank the Mas­ters whose ef­forts of­ten go un­no­ticed and un­her­ald­ed.

Our abil­i­ty to im­prove dis­pos­al rates is al­so be­ing ham­pered by ir­re­spon­si­ble and ex­ces­sive re­sort to pro­ce­dur­al ap­peals by some mem­bers of the bar and I in­tend to pur­sue con­sul­ta­tion with the Law As­so­ci­a­tion with a view to pos­si­ble amend­ment of the CPR to dis­cour­age un­nec­es­sary ap­peals.

Again I have been cau­tion­ing for some time that we are at sat­u­ra­tion point and burnout is be­gin­ning to af­fect the judges. The de­ploy­ment of al­ter­na­tive dis­pute res­o­lu­tion mech­a­nisms is an es­sen­tial part of any ef­fec­tive jus­tice sys­tem. We do not ex­ist to do tri­als, we ex­ist to pro­vide a dis­pute res­o­lu­tion ser­vice in which a tri­al is on­ly one op­tion and one of last re­sort.

In the past, I have promised the roll out of ADR sys­tems in­clud­ing me­di­a­tion and set­tle­ment con­fer­enc­ing as an in­te­gral part of our suite of ser­vices. Un­for­tu­nate­ly we have not been able to meet the Sep­tem­ber 2015 dead­line but sig­nif­i­cant progress has ben

made. We should be in a po­si­tion to eval­u­ate re­spons­es to the call for ex­pres­sions of in­ter­est from ser­vice providers with­in a cou­ple of month or so and I am de­ter­mined to have im­ple­men­ta­tion ef­fect­ed with­in the up­com­ing term.

MAT­RI­MO­NI­AL

New di­vorces filed are hold­ing steady at 2814 in com­par­i­son to 2824 the pre­vi­ous year. De­ter­mi­na­tions how­ev­er are up to 2253 from 1963. I am not sure that I can re­port that as good news but at least we are be­com­ing more ef­fi­cient at it.

PRO­BATE

There was a re­bound in new fil­ings from 3052 to 3633 which puts us above the 6 year av­er­age of 3463. We man­aged to achieve a clear­ance ra­tio dur­ing the year of 0.86 for large es­tates and 0.99 for small es­tates.

MAG­IS­TRA­CY

Here the news is not so good. While new fil­ings are down from 125,166 to 115,536 (the con­tin­u­a­tion of a trend over the past three years), so are dis­pos­als from 83,822 to 77,816. More sig­nif­i­cant­ly, the dis­pos­al to fil­ings ra­tio is stuck at 0.67.

This is an area where some com­mon sense is re­quired. Traf­fic mat­ters ac­count­ed for 56,744 of the new fil­ings. I have been say­ing it over and over again. Mag­is­trates do not need to be deal­ing with mi­nor traf­fic mat­ters like tick­ets. They should be do­ing case man­age­ment and tri­als. The tech­nol­o­gy ex­ists for smart li­cences and im­me­di­ate elec­tron­ic ci­ta­tion.

Fines should be payable on­line and in de­fault one should not be able to reg­is­ter a new ve­hi­cle or re­new a dri­ver's li­cence. An un­suc­cess­ful court chal­lenge should be met with an au­to­mat­ic dou­bling or tripling of the fine and the in­tro­duc­tion of a points sys­tem with au­to­mat­ic dis­qual­i­fi­ca­tion be­yond a fixed thresh­old and manda­to­ry dri­ver ed­u­ca­tion be­fore re­new­al should be ef­fec­tive at be­hav­iour mod­i­fi­ca­tion.

We are al­ready do­ing what we can in re­spect of process re­form by the in­tro­duc­tion of Crim­i­nal Pro­ce­dure Rules, and in­ten­sive case man­age­ment train­ing in col­lab­o­ra­tion with the bar is planned to change the cul­ture of ad­journ­ments. There should be no such thing as putting a mat­ter for men­tion.

No ad­journ­ment should ever take place in any court with­out clear di­rec­tions and un­der­stand­ing of what the re­spec­tive par­ties are re­spon­si­ble for do­ing in the mean­time and no court hear­ing should be sched­uled un­less spe­cif­ic steps are to be tak­en to­wards the dis­pos­al of the mat­ter.

Ad­di­tion­al­ly, the roll out of hear­ings by video link, which has been stalled for so long needs to be start­ed. This will re­duce the cost and risk of pris­on­er trans­port as well as the prob­lem of late ar­rival of pris­on­ers to court.

Hav­ing said all of that I must thank those mag­is­trates who have once again put in a her­culean ef­fort un­der very dif­fi­cult con­di­tions. While it is al­ways risky to sin­gle out any par­tic­u­lar dis­trict be­cause there are hard work­ing mag­is­trates every­where, I think we need to go and do a study of Point Fortin where a dis­pos­al to fil­ing rate of 98% was achieved!