Confidence in the CCJ

by Denys Barrow SC 23.OCT.09

It may well be true that Caribbean people lack confidence in our domestic legal system and yearn more for justice than they yearn for being able to boast of having their own final appellate court, the Caribbean Court of Justice. This is the thesis of an article by Dame Bernice Lake QC that explains the improvements that need to be wrought to “secure a judicial ethos in which the citizens are so confident of the quality of justice which comes out of the system that they would readily embrace and give sanction to the CCJ.”{{more}}

It is regrettable that the writer purported to validate this lack of confidence as being not merely a ‘feeling’ of Caribbean people but as based on statistics. The writer stated: “When it is appreciated that nearly 90% of the cases going up from the Court of Appeal to the Privy Council are reversed, it is a matter of numbers, not feeling.” It is inferred that “the Court of Appeal” to which the writer was referring was the Eastern Caribbean Court of Appeal. The statistic the writer uses is utterly wrong!

Statistics on appeals to the Privy Council are freely available on the internet; see http://www.privy-council.org.uk/output/Page34.asp .

The last two years for which Privy Council statistics have been posted are 2006 and 2007. Those statistics reveal that in 2006 the Privy Council disposed of 6 appeals from the Eastern Caribbean states. Four appeals were allowed and two were dismissed. In 2007 the Privy Council disposed of 9 appeals from the Eastern Caribbean states. Five were allowed and four were dismissed.

It is therefore egregious to propagate the statistic that 90% of the decisions of the Court of Appeal of the Eastern Caribbean Supreme Court that are sent to the Privy Council are reversed.

A comparison of the performance of the ECSC may be made by examining the statistics of the House of Lords on appeals from the Court of Appeal of England and Wales for the last year that is currently available online; see: http://www.parliament.uk/documents/upload/JudicialStats2006.pdf

In 2005 a total of 65 appeals from the English court of appeal were decided by the House of Lords. Forty five appeals were allowed and twenty were dismissed. If it makes sense to use bare statistics to determine the quality of a court’s performance, the “market product” of the Eastern Caribbean Court of Appeal is better than that of its English counterpart!

It is also regrettable that the writer should seek to ascribe blame for lack of confidence in our justice system only to the judges and ignore the extent to which lawyers share responsibility when judgments are reversed. It is a truism that the quality of a court’s decision in any given case is affected significantly by the quality of the input from the lawyers who argue the case and thus define for the judges the propositions of fact and law between which the judges must choose. In one of the cases on which the writer relied to show poor judicial performance by the court of appeal that “denudes confidence”, the decision of the court of appeal to apply to that particular case of wrongful dismissal a legal approach that is generally applicable only to cases of unfair dismissal flowed directly from the fact that counsel on both sides conveyed to the court of appeal that the approach the court should apply was the one the Privy Council said was the wrong approach.

The need to resist being too quick to see it as incompetence on the part of our judges when they are reversed and not as understandable error or reasonable disagreement between two levels of courts is demonstrated by the reverses of the writer herself. The wrong statistical premise that is the foundation of her article has already been shown. A further error on the part of the writer is her failure to appreciate that in the case to which she referred concerning the three (not two) foot public road, the court of appeal decided that the original path should be held to have been increased to thirty feet because the relevant legislation expressly provided for payment of compensation for that increase.

Simply wrong

It is simply wrong for the writer to suggest the court of appeal failed to “come to grips with the citizen’s constitutional right to the protection of his property guaranteed by the constitution.” Rather, the Privy Council decided to vindicate the right of property by upholding the right to the land itself rather than by upholding the right to compensation for land compulsorily acquired by the state. As it often does, the Privy Council decided the appeal on a basis that was not litigated in the courts below.

Too ready a wish to criticize can lead to over simplification. It would overly simplify the writer’s thinking to say that all she has written is to be ignored because she wrote about “the Common Law tort of Wrongful Dismissal and the Statutory tort of Unfair Dismissal” when quite clearly either form of dismissal arises out of the contract of employment and is a matter of contract law or employment law, and not the law of tort. It is that sort of carping that opinion leaders in the Eastern Caribbean and elsewhere must avoid when they examine the quality of justice produced by our judges and lawyers, of which we can be justly proud.

If it is true that Caribbean people lack confidence in our domestic legal system that diffidence may be a matter of feeling, not of numbers. But if the feeling does exist it may be no less a barrier to popular embrace of the Caribbean Court of Justice than if it were statistically justified. It is a feeling of which we must rid ourselves, not promote. The Caribbean Court of Justice has been operating for five years now and has earned highest praise within the region and internationally for the quality of its decisions. Instead of lowering appreciation for the CCJ by statistical calumny of our domestic courts from which most of our CCJ judges come, we should raise appreciation for our domestic courts by looking at the CCJ to see the excellent quality of judges we have always been able to produce.

Denys Barrow is a former Judge of the Court of Appeal of the Eastern Caribbean Supreme Court.