A civil judge has cautioned that the justice system is underfunded and significantly under-resourced and will continue to face “embarrassing” situations if action is not taken to fix the problem.
Justice Cecil McCarthy raised his concern on Wednesday as he awarded another $60 000 in compensation to former murder accused Pedro Deroy Ellis whose constitutional rights were breached, and also praised his lawyer for taking on the State in such matters.
He further suggested that Ellis’ victory in this matter and other cases against the State should spur the powers that be to address “a very difficult phase in terms of the administration of justice”.
The quantum of the award to be paid to Ellis was handed down just under two weeks after Justice McCarthy ruled that the former accused’s right to a fair hearing within a reasonable time as well as his right to bail had been breached.
This is the second such victory for Ellis and his legal team of Queen’s Counsel Larry Smith and Jamila Smith, who last month won $75 000 in a related case.
“I commend counsel for the tenacity [with which] he is pursuing these cases. I think it will all redound to the jurisprudence as well as the efficiency with which these matters are dealt with by the judicial system.
“There is clearly a need, in my view, to treat this matter as a priority. You cannot have a number of decisions all going in one direction and not be jolted into taking action to not only acknowledge but to deal with what is clearly . . . if not a crisis, certainly a very difficult phase in terms of the administration of justice,” the judge said.
Justice McCarthy said the State had more or less agreed that there was unreasonable delay in relation to Ellis’ bail hearing, including his appeal against denial of bail.
He said he assumed one of the reasons for the protracted bail proceedings was that the Court of Appeal was investigating whether it was possible to have an appeal from a bail decision since “the practice usually in this jurisdiction was that if you apply for bail and it is refused, you will wait a while and then you will apply again before another High Court judge”.
“I am assuming that is the reason for the whole delay, and it is part of a system that is significantly under-resourced,” Justice McCarthy said.
“I don’t think that the courts and the judges . . . sufficiently explain to people the extent of the underfunding in this area. That is part of the reason why you are going to have people on remand for excessive periods . . . . Because this is, in my view, an underfunding of the system and until that underfunding is dealt with you are going to have problems as you transition to having a more efficient system.”
Pointing out that he had delivered 31 written judgments in a 35-month period, the judge added: “If you are going to [have] a system where you are virtually hearing matters every day in the week or at least four days, you are not going to be able to write the decisions that come at you in this jurisdiction. And while it appears to people that there are a lot of judges now that a few appointments have been made, the problem is a backlog.
“There is a backlog that if you undertake dealing with it, it necessarily affects your other work, but if you don’t do it you are going to have a lot of embarrassing situations before the courts.”
Back in July, Madam Justice Shona Griffith awarded Ellis $75 000 in compensation for the three weeks he had been unlawfully remanded after a jury found him not guilty of the May 5, 2013 murder of Antonio Harewood but could not reach a verdict on manslaughter.
In handing down his decision on Wednesday, Justice McCarthy noted that it was within the discretion of the Office of the Director of Public Prosecutions (DPP) to proffer a manslaughter charge against Ellis, since he had been acquitted of murder.
Therefore, he said, “out of an abundance of caution, I have made an order that the claimant should not be tried for any offence arising out of the facts”.
The $60 000 compensation ordered by Justice McCarthy covers a November 28, 2018 to October 25, 2019 period when Ellis was on remand and will attract six per cent interest as of Wednesday. Costs were also awarded to Ellis’ two lawyers.
Queen’s Counsel Smith said the outcome of the case underscores the significance of the fundamental rights and freedoms enshrined in the Constitution.
“The court has the responsibility to protect and sustain all of our fundamental rights and freedoms as sacrosanct. Moreover, the court is also responsible for ensuring that the infringement of those rights and freedoms [is] not allowed and callously normalised,” he told Barbados TODAY.
Smith added that consideration had to be given to what his client had to endure while his constitutional rights were being infringed.
“This award of damages will go some way to easing the difficulties of the experiences of the breach of his rights which includes, for example, the loss of time with his family and friends which he can never regain,” he said.
After being arrested in May 2013 for Harewood’s stabbing death, Ellis had been remanded to prison. In February 2014, he made his first of many bail applications before the High Court, but all his attempts were unsuccessful.
One bail application was made in December 2016 and when it was denied, he filed the notice of appeal in March 2017 and the matter was heard by a panel of judges in March 2018. The decision was handed down a year later.
The saga prompted Ellis’ attorneys to file the constitutional action, arguing that his rights to bail and to a fair trial in a reasonable time had been breached.
fernellawedderburn@barbadostoday.bb
