#BTEditorial – Isn’t justice contrived, also justice denied?

The decision by High Court Judge Randall Worrell to clear the No. 2 Supreme Court’s calendar next week in order to adjudicate cases of persons on lengthy remand is to be commended.  The shameful saga of one inmate who had been on remand for almost a decade without a court appearance was exposed last week before Justice Worrell. To his credit – unlike what seems to be the norm in our judiciary – the Judge has taken immediate action in having others who have endured very lengthy remand periods and want to plead guilty appear before him.

But there is need for caution. There is the legal maxim that justice delayed is justice denied. Now, our courts must diligently guard against another possible maxim being added to that; justice contrived is justice denied. And exactly what do we mean?

Barbadians were made aware last week that there are several inmates who have been on remand for many years without trial and wanted now to plead guilty. Indeed, those persons who wish to plead guilty are likely to be those who will have their matters brought forward next week so that justice is served. As was pointed out last week, there is the possibility that some persons have been on remand for longer periods than the maximum sentence their alleged crime might have brought.

Will we now be faced with a situation where persons plead guilty not necessarily because they are guilty or are unwilling to fight their cases, but do so because their guilty plea will equate to an end of their remand and immediate release under the circumstance of time having already been served? Persons who run afoul of the law or are accused of running afoul of the law should not feel compelled to plead guilty to a charge because they contemplate the option of a remand period that is just as long or longer than a prison sentence. One does not want a situation where guilty pleas are made because of frustration with a dysfunctional judicial system. Persons before the court should plead guilty because they want to and not because they are frustrated into doing so. That is justice contrived.

Perhaps, we have reached a stage where plea-bargaining – similar to the United States – should become a major part of our domestic judicial processes. This could go some distance in expediting cases. State evidence is shared with accused and defence counsel and a pre-trial determination made as to whether the weight of prima facie evidence is so great that it would be in the interest of the accused to accept a deal that might involve a reduced sentence. Of course, there is an element of that already existing in our system where the Director of Public Prosecutions might accept a guilty manslaughter plea in exchange for the withdrawal of a murder indictment. But the suggestion being made here is that such judicial plea-bargaining or deal-making be looked at for both summary and indictable matters on a major scale.

There is already an element of deal-making practised in this and most jurisdictions where individuals are openly and tacitly encouraged to plead guilty if they are guilty. Indeed, local judicial lore can refer to a now deceased magistrate who would direct persons who were pleading guilty to one side of the prisoners’ bench and those pleading not guilty to the other side. And he would warn that woe would befall those on the “not guilty” side who were subsequently found guilty. This worked well to expedite matters in that legendary magistrate’s court but of course that approach was very wrong. No one should be intimidated to plead guilty. The maxim of innocent until proven guilty and the burden on the prosecution to prove guilt are still very much alive and well. The idea of not wasting the court’s time has long been promoted but truth be told, that notion is tantamount to a ridiculous non sequitur. How can any individual facing a charge waste the court’s time if it is his or her right to plead not guilty and the state’s duty to establish guilt beyond reasonable doubt? 

  Hopefully, over the next week as those persons on remand at Her Majesty’s Prison at Dodds appear before Justice Worrell, it is established that they are pleading guilty because they believe and accept their guilt and want to plead guilty, and are not just doing so because a dysfunctional judiciary has compelled them to plead guilty as a means – ironically – of ‘escaping’ from jail.