CJ: Rules to protect children’s rights

2. CASE MANAGEMENT INFORMATION SYSTEM A major part of the project is the introduction, piloting and testing of a new Case Management Information system. Court Case Management Information Systems, their development and the attendant licensing present a large expenditure to all Judiciaries.

While our JEMS system has served us relatively well over the years, the ever-increasing cost and limited access to source codes have for some years taken a toll on the Judiciary’s budget, its resources and its efficiency. The Judiciary of Trinidad and Tobago has not been alone in this dilemma, as Judiciaries worldwide have grappled with the problems posed.

The National Centre for State Courts and the Nigerian Judiciary had embarked some three years ago on the development of base software that NCSC had created for Bosnia several years ago. Together they worked with TATA of India to develop a common law friendly version of this CMIS for the Judiciary of Nigeria.

The President of the International Division of NCSC and Lord Zana of the Nigerian judiciary together graciously agreed to give this software and its source codes to the Judiciary of Trinidad and Tobago for the use of any and all the courts of Trinidad and Tobago.

Together with other Caribbean Chief Justices, I visited Nigeria to meet with the Judiciary of Nigeria and to observe the software in final development stage.

We are now in receipt of the Nigerian customized software. The JCP team, Judiciary IT and other court staff are working with the NCSC to customize the software for application in pilot phase in the Children Court. Success in its implementation and further Trinidad and Tobago specific development is a welcome development that is expected to herald greater efficiency and a significant cost saving for the Judiciary. It will also afford the judiciary, for the foreseeable future, the ability and opportunity to develop and customize and make its own software changes and undertake the interface of our CMIS with other addon modules.

3. JUDGES’ RULES FOR CHILDREN In previous addresses, I have referred to the historical deficiencies that have persisted in respect of children in the criminal justice system. The development of Judges’ Rules aimed specifically at children is an attempt to address that lacuna and bring us in line with our International Treaty obligations regarding the rights of children, the preservation and protection of their dignity and interests (having regard to their particular vulnerabilities), while maintaining the same common law protections afforded to adults with respect to voluntariness of admissions and the presumption of innocence.

Accordingly, Rules have now been finalised for signature today that will take effect from November of this year. They will, among other things, give primacy of place to the following principles: - • Family relationships between a child and members of his family shall where appropriate and, so far as is possible, be preserved and strengthened; • All decisions regarding the child shall be based on the consideration that they are in the best interest of the child; • Unless the public interest requires otherwise, criminal proceedings shall not be instituted or continued against a child if there are alternative means of dealing appropriately with the matter (this is of course ultimately a matter solely within the discretion of the DPP); • A balanced approach shall be taken between the needs of the child, the rights of any victim of the child’s offence and the interests of the community; • Due regard is to be had to the views and voice of the child consistent with his/her age and maturity and there is to be equality of treatment regardless of socio-economic status, race, sex, orientation, religion or family situation; • A parent, guardian or person with responsibility for a child shall be encouraged to fulfil his or her responsibility for the care and supervision of the child; • It is desirable that a child who commits and offence must bear responsibility for his actions and wherever possible make reparation while also being assisted with his reintegration into the community so as to sustain family and community ties.

The Rules are very comprehensive and cover every aspect of interaction from initial engagement, questioning, stop and search to the conduct of identification parades and the obtaining of statements and intimate samples.

I would like to publicly acknowledge the contributions and hard work of the representatives of the Criminal Bar, the DPP, the CPC, Police, Prisons, Solicitor General’s Department, Legal Aid, Children’s’ Authority, Probation Department, the Juvenile Court Project team, and our own Registrars, Masters and Judges who worked tirelessly and for no personal reward to bring this labour of love to fruition. And I know it was a labour of love because they sat with me through evenings and weekends and public holidays [when I wasn’t racking up the frequent flier miles] to debate and to thrash out, sometimes passionately, what was best for our children. I think we can be justly proud of the final product and it will inform in due course, new Judges’ Rules with more general application. We are talking about the judges initiating a culture change in the way we interface with power...so where better to start than with our most vulnerable? 4. CRIMINAL PROCEDURE RULES The much anticipated Criminal Procedure Rules that were completed with the collaboration of the Trinidad and Tobago Bar, the CPC, the DPP, and the Criminal Justice Advisor so kindly provided by the UK and Canadian Governments, have finally been laid in Parliament. They are expected to bring more discipline to the criminal trial process in much the same way the Civil Procedure Rules have enabled the Court to more effectively manage the pre-trial and trial processes.

Full implementation is now carded for the beginning of 2017 with the expectation that aggressive case management will lead to greater trial efficiency. Stringent timelines for both the defence and the prosecution supported by appropriate sanctions for breach of those timelines will work as a management tool to assist the Courts in developing consistency in the way matters are advanced through the system.

By way of example, the Court, in the management of cases will be able to give a direction on its own initiative or on application by a party. Such a direction may be: • to ask or allow a party to propose a certain direction; • for the purpose of giving directions, receiving applications and representations by letter, by telephone or by any other means of electronic communication, and to conduct a hearing by such means; • to fix, postpone, bring forward, extend, cancel or adjourn a hearing; • to give directions without a hearing; or even • to shorten or extend (even after it has expired) a time limit fixed by a direction.

These extended powers of the Court especially as they relate to the use of real-time electronic communication now recognised and accepted as an official means of communication between the Court and parties, will have a tremendous impact on the speed at which matters can proceed. This should go a long way toward reducing delay and backlog in our Criminal Justice System. The Rules also provide for early disclosure and disposal of preliminary issues and for matters to be dealt with expeditiously. Training of stakeholders in the application of the Rules begins next month.

5. COURT ANNEXED MEDIATION As many of you are aware, the Judiciary has successfully conducted pilot ADR projects utilising Mediation and Judicial Settlement Conferencing and I committed to the introduction of ADR as a standard component of the civil dispute resolution process.

I am happy to report that in February 2016 the judiciary finally received Cabinet approval for funding the implementation of Court Annexed Alternative Dispute Resolution as a service to be implemented on a continuous basis. Cabinet also agreed to the engagement of a Consultant with the relevant expertise to perform critical services related to the deployment for a period of eighteen (18) months.

The Judiciary has requested the services of the Central Tenders Board to procure a mediation service provider and short-term consultant to assist with the roll-out and implementation is currently awaiting the award of contracts by the Central Tenders Board for both the engagement of a Consultant and a Mediation Agency respectively.

6. JUDICIAL EDUCATION AND TRAINING At the core of our consolidation for enhanced delivery is the belief that our most important resource is our human resource. Lasting change that maintains our relevance to the needs of the society that we serve is not possible without change in the culture of the judiciary as well as constant updating of skills. The work of the Judicial Education Institute and our Human Resource Unit is therefore of paramount importance, particularly at a time when stringent austerity requires us to get best value for money.

The Judicial Education Institute of Trinidad and Tobago (JEITT ) has continued to focus on commitment to growth through learning in all of our programmes for the 2015/2016 calendar year, with the aim of assisting the Judiciary to perform in a manner that upholds its independence and integrity, and ensures public trust and confidence in the administration of justice. Consistently operating with the motto – “Transformation through Education” – in mind, our training programmes are developed as a result of the expressions of need by our participants as well as by reference to our strategic goals. Following the success of our Train the Trainers programme, the JEI has had the opportunity to engage participants as facilitators for many of this year’s workshops and training programmes.

Our philosophy is to develop in-house faculty thereby saving cost and honouring one of our core values, which is a commitment to the professional development of our human resource. Among the highlights were: • In September 2015, members of the Board and staff of the JEITT attended the Caribbean Association of Judicial Officers’ (CAJO) 4th Biennial Conference in Montego Bay, Jamaica.

This allowed us the opportunity to engage with judicial officers from across the region, informing them on what a Judicial Education Institute does, including our history and our operations, and displaying our publications. This was also an opportunity to launch a pilot survey for research purposes.

Sessions attended at the conference included judgment writing, restorative justice, and ethics and judicial conduct, amongst others.

• In October 2015, three Board Members of the JEITT were invited to participate in the National Association of State Judicial Educators’ (NASJE) 39th Annual Conference in Seattle, Washington, at which they attended sessions on curriculum planning, leadership programmes, and faculty development.

• In November 2015, the International Organisation for Judicial Training (IOJT) requested the JEITT to do a presentation at their 7th International Conference in Recife, Brazil in November on “Training in the Judiciary – Judicial Excellence through Education”.

As such, I attended along with Mr Kent Jardine, Judicial Educator, and presented a paper written by The Honourable Mr Justice Peter Jamadar and Mr Kent Jardine, which was very well received, and was later used to develop the JEI’s historical publication.

• 2016 began with a Magistrates’ Workshop on “Proceeds of Crime and Asset Recovery,” held in both Port-of- Spain and San Fernando and a “Sentence Indication Seminar” for Judges facilitated by The Honourable Madame Justice Gillian Lucky. The latter was undertaken as part of the adoption of MSI hearings as a strategy to improve the throughput of indictable matters which, as you will hear when I get to the statistical reporting, is already bearing fruit.

• The beginning of March 2016 brought with it the JEITT ’s Sixth Annual Distinguished Jurist Lecture (DJL).

Our distinguished jurist Professor Richard Drayton PhD FRHistS delivered an insightful, thought-provoking lecture on “Whose Constitution? Law, Justice and History in the Caribbean” to a full Convocation Hall in the Hall of Justice, Port-of-Spain – our most well attended DJL yet! This year’s lecture was followed by Conversations on the topic, in which attendees had the opportunity to discuss the lecture with Professor Drayton, fellow attendees, and a specially invited panel of facilitators.

• Also held in March were the Civil Judges’ Half-day session on “Costs,” facilitated by The Honourable Mr Justice Robin Mohammed, which looked at the new costs regime and discussed quantification determinations (further examined in a follow-up session held in May), and the Court Administrative Unit’s Continuing Education Seminar on the topic “Organisational Trust and Team Building.” • In June 2016, the JEITT brought together – for the first time – our Judges, Masters, Registrars, and Magistrates for a joint Continuing Education Seminar on the topic “Implicit Bias: Pathways for Transformation.” This extremely well received session looked at the sociological, anthropological, and historical sources of biases, discussed Justice and Culture, and worked toward strategies and ideas for reducing implicit bias in our justice system.

Notwithstanding scepticism in some circles, it should be understood that it is accepted international best practice in developed societies for judiciaries to have continuous training in this area in order to maintain relevance and effectiveness. At the same time, the opportunity to bring together judicial officers from all of our various courts provided an opportunity for communication and sharing of expertise on all levels of the system.

• Workshops for June of this year included “Difficult Conversations” attended by the Judicial Research Counsel, “Referring Accused Persons for Psychiatric Assessments and Psychiatric Evidence” for the Criminal Judges and Magistrates, and the Criminal Judges’ Halfday session on “The Criminal Proceedings Rules: Management and Case Flow Management” facilitated by The Honourable Madame Justice Charmaine Pemberton.

• For July 2016, The Honourable Mr Justice Gregory Smith JA held one of his two-part workshops on “Super Clarity in Judgement Writing,” this part dealing with the Principles of Macro Organisation, held for Judges and Judicial Officers. In addition to training programmes, the JEITT produces publications each year in order to expand the reach of judicial education to the public. During the 2015/2016 year, the JEITT published the following: • Celebrating 50 Years of an Independent Court of Appeal of Trinidad and Tobago 1962-2012: With a narrative by Bridget Brereton, this publication celebrates the very rich legacy left by a group of outstanding jurists who took the administration of justice in our country from colonialism to independence and beyond.

• The Republic of Trinidad and Tobago’s Criminal Bench Book 2015: This Bench Book allows for critical information relating to the norms for conducting a fair and just criminal trial to be readily available, thus promoting transparency, accountability and consistency in the criminal justice system. I am told that it is now a standard reference tool for attorneys and judicial officers throughout the region • Distinguished Jurist Lecture 2015 publication: Dame Linda Dobbs DBE, the Distinguished Jurist for the JEITT ’s Fifth Annual Distinguished Jurist Lecture, delivered the lecture “Who’s Afraid of Human Rights? The Judge’s Dilemma” on May 13th, 2015. This publication details Dame Linda’s captivating lecture on the history of Human Rights legislation and the examination of Trinidad and Tobago’s legislation by comparison, and includes the analytical panel discussion that followed.

• Our Story – the Judicial Education Institute of Trinidad and Tobago: This publication delves into the inception, development, and operations of the JEITT from 1996 to 2016; our story, throughout the years.

Training and Development led by the Judiciary’s Human Resource Unit Some of the key areas of Training and Development for 2016 were: Managing Relationships • Protocol and Etiquette for staff of the Judiciary • Crisis Management and Contingency Planning • In-house Court Reporting Services Unit Workshop • Cultivating Respect in the Workplace (EAP) • Industrial Relations Management for the Public Sector • Employee Assistance Programme (EAP) Sensitisation Sessions Managing Information And Information Flows • Microsoft Office Suite (Excel) • Introduction to Records Management for Records Staff • Introduction to Virtualisation • Census and Survey Processing System (CSPro) Analytical Training Programme • Probate GUI JEMS Training Managing For Results • High Impact Business Communication Skills • Project Management for Facilities Professionals • Fundamentals of Procurement, Negotiation and Contracting • UWI Inventory Management (A Systems Approach to Inventory Management) • Change Management - AdPro’s Prosci Change Management Certificate Programme • Operations and Maintenance Workshop • Change Management (Taming the Change Tiger) • Structured Query Language Workshop (Family Court) STATISTICS How does all of that translate into performance statistics? I do not propose in the context of a speech of this length to delve into great detail except to say that what might at first glance be regarded as a flattening of output must be looked at in light of the fact that, along with the rest of the public sector, we had to undertake a cut in expenditure at the very beginning of the fiscal year. As a result, some positions that became vacant through normal attrition could not be filled and, as in previous years, we continued to function below strength in terms of numbers of employees at every level including the bench. As I have tried to outline, the focus was on institutional strengthening for the future. Having said that, the news is far from discouraging, as I will attempt to demonstrate: Court of Appeal While the total number of appeals filed remained static, there was a significant (17%) increase in appeals from the High Court that was offset by a 24% decrease in magisterial appeals. This actually represents an increase in the complexity of the work with the majority (397) (or 64%) being Civil High Court Appeals. We were only able to dispose of 195 regular Civil Appeals, which is slightly below the 6-year average of 201 but there was actually a 6% increase in matters disposed of after a hearing, which was offset by a 38% decrease in matters withdrawn.

The overall picture on the Civil side is therefore one of better utilisation of the Court since fewer untenable appeals are being filed but we are still falling behind in terms of the total transit time from filing of appeal to disposition, in part because we were functioning below strength.

While 79% of all the matters disposed of were completed within 2 years of filing (58% within 1 year), I would like to improve that figure. Two new appointments to the Court of Appeal were announced at the end of the last term and we expect to further strengthen the complement during the course of this year. There was no change in the number of Criminal High Court Appeals disposed of while filings and dispositions of Magisterial appeals were down by 24% and 25% respectively. We disposed of 19 Family Court Appeals.

We continue to be inundated with procedural appeals, many of which are wholly misconceived and unnecessary and I am firmly resolved to introduce limits on the size of bundles and time for oral argument. Perhaps the time has come to amend the Rules so that most procedural appeals can be disposed of on paper without a hearing. In that way the time and resources of the court can be more rationally employed, in accordance with the overriding objective, on the matters that actually require more attention.

High Court Civil The steady downward trend in total filings that began four years ago continued with 4,333 filings compared to the six-year average of 4,883. 3,661 matters were disposed of which means that the clearance ratio showed a slight uptick from 0.82 to 0.84. In terms of transit time, 78% of the matters disposed of were less than two years from the date of filing.

Again this is a figure that compares favourably with international norms but we expect that automatic mediation and settlement conferencing will improve performance in this area particularly with the outlier matters that are proving to be more intransigent.

Some introspection may also be required with regard to firmer case management as well as cooperation from the bar, but again one reasonable interpretation of the data is that we are simply at the limit of our current capacity.

High Court Criminal There are a number of different ways of parsing the data depending on what one wants to see. What I can say is that there is good news and there is bad news but the trend remains disturbing.

The good news is that despite some trials occupying an inordinately long length of time the extraordinary effort put in by the judges in the Criminal jurisdiction of the High Court resulted in a second successive year where there was an increase in the number of indictments disposed of for both Capital and Non-Capital matters. The total rose from 140 to 152. The use of maximum sentence indication hearings leading to guilty pleas contributed in no small measure to this as had been anticipated.

The disposition to filing ratio also improved from 0.74 to 0.86. The bad news is that the median time from filing of indictments to disposition is in excess of three years. This is not counting the time spent from charging through preliminary inquiry to committal so that the total transit time for the average matter through the criminal justice system is simply unacceptable.

Not only does this compare unfavourably to the civil justice system, much of it as I have pointed out ad nauseum is wholly unnecessary and translates into hardship and deprivation of liberty that is avoidable.

One statistic in particular speaks volumes. While it is true that 185 accused persons had their indictments dealt with, 75 of those (or 41%) had retrials ordered so that their matters were simply recycled into the system.

Simply put, the jury system is not working! I don’t know how many times I have to make the point to those who have no understanding of how it works that if matters are heard by a judge alone he/she has to make a decision one way or the other that is definitive and subject to appeal based on a consideration of transparent written reasons, none of which applies to juries. If the current inefficient and ineffective is what the country wants to have then fine, but don’t blame me for the consequences! I was appalled at the conclusion of a recent matter that occupied a court for over two years to hear the bleating about the vindication of the jury system.

Of course for those who were acquitted one can well understand the sense of elation, but what about those who have to be retried, are they and the victims’ families not entitled to some finality in determination of guilt or innocence within a reasonable time? From a management, process, justice or simply any common sense point of view, any proceeding that occupies so much time and resources without producing a definitive result is a total disaster. That is not a criticism of the judge who had to manage an extraordinarily complex trial nor of the jury who, untutored in the principles of law and evidence had to sift through mountains of evidence and complex directions. It is a systemic failure that I do not have the power to fix because I do not pass legislation. Yes, better criminal case management will help but it does not get to the root of the problem. This is one area in which I will continue to hammer away! Family and Probate Divorces were down for the first time in four years with Decrees Nisi dropping from 2,253 to 2110 (94% being granted within a year of filing) while Probate dispositions held steady at 3,140 (a decrease of only eight from 3,148 the previous year) Subjective Performance Measures In keeping with our mission and mandate to attract and retain public trust and confidence, the judiciary has also included customer satisfaction data in its performance metrics. This involves surveying both internal and external clients and stakeholders.

In that regard we have recently engaged an external service provider so as not to avoid bias in the results and I think I have a duty to report the preliminary findings while we await the final detailed report, without going into details of the research methodology.

The Net Promoter Score (NPS) is a customer loyalty metric that divides an institution’s customers into three categories: Promoters, Passives and Detractors.

• Promoters are satisfied customers who provide positive feedback and word of mouth.

Promoters are optimistic in their dealings with the institution and are more likely to emphasize positive interactions experienced.

• Passives are satisfied but unenthusiastic customers who are vulnerable to the impacts of negative interactions.

• Detractors are unhappy customers who can damage a brand through negative wordof- mouth.

The NPS is calculated by subtracting the percentage of customers who are detractors from the percentage who are promoters.

The NPS therefore theoretically ranges from a minimum of -100 to a maximum of 100.

Of the three stakeholder groups examined, all returned positive Net Promoter Scores with six in ten persons indicating overall satisfaction with the services received and in most areas respondents were neutral in terms of whether subjective experience exceeded or fell short of expectations. Interestingly enough, Lawyers as a group were most positive with civil society not far behind. Further details will be made public, as appropriate, when final results are in and thoroughly analysed.

Physical Infrastructure Last year, I expressed my frustration at the fact that over the previous 5 years none of the promised judicial complexes had materialized. We are faced with the reality that we now exist in difficult economic circumstances.

Nevertheless, we were finally able to complete the refurbishment of the Chaguanas Magistrate’s Court which now provides improved comfort and increased work spaces for staff; revamped work flows; modern court and telephony technologies; modern records management systems, introduction of a number/ticketing system; secure circulation zones, and enhanced security surveillance systems among others.

This is the model for gradual replacement of our aged physical plant. We must thank and commend again our staff, burgesses of the Borough, and residents of the District for their remarkable patience and understanding during the time works were ongoing and when they had to travel to Tunapuna to receive the services of the Court.

Work continues on the Siparia Magistrates’ Court, which was in a dire state, and we expect to complete the new Magistrate’s Court Building in San Fernando by mid-2017