Friday, May 12, 2017

Anguilla's Judicial System, 1650-2017

The Lawless Period
Anguilla was first settled by runaway English indentured servants from Barbados and small farmers from St Kitts escaping the heavy tobacco taxes, imposed there to build the forts for defence against the French.  An English historian, writing in 1707, described the settlers of Anguilla this way,[1]
Their business . . . was to plant corn, and breed tame cattle,[2] for which purpose they brought stock with them.  They were poor and continue so to this day, being perhaps the laziest creatures in the world.  Some people have gone from Barbados, and the other English Charibbee Islands, thither;  and there they live like the first race of men, without government or religion, having no minister nor governor, no magistrates, no law, and no property worth keeping.  If a French author is to be believed, . . . ’The island is not thought worth the trouble of defending or cultivating it’.
What was patently unfair about this description of the early Anguillians was the accusation that the people were lazy.  From the earliest days, to be lazy in Anguilla was to die from starvation and want.  Regular periods of drought; frequent hurricanes; a thin, poor and unproductive soil; and the devastations brought by the wars between the English and the French combined to impoverish the people.  Only the keeping of small stock such as goats, and the growing of such tough crops as maize, sweet potatoes, and pigeon peas could ensure the survival of the people.  The risky enterprises of privateering during times of war, and the continuous smuggling among neighbouring islands, brought into the island a limited amount of coin.  No one could prosper, far less grow rich, in such adverse conditions.
In 1666, some ten years after settlement, the leading members of the isolated, ignored and impoverished Anguillian settlers formed themselves into a self-appointed Council and elected their own deputy governor.[3]  The power this Council exercised was not sanctioned by any local or regional statute or other law.  In every other Leeward Island, Royal Patents were sent out from London for the establishment of a deputy governor and an island Council.  In Anguilla by contrast, unique in the West Indies, for nearly 175 years after the island’s settlement in 1650, there was no lawfully constituted Council to govern the affairs of Anguilla.  The Anguilla Council was self-appointed and was merely tolerated by the colonial authorities in Antigua.  The Governor-in-Chief invariably confirmed the local appointee, and never interfered in the affairs of the Anguilla Council, as he frequently did in the more prosperous and consequential colonies of Antigua, St Kitts, Nevis, and Montserrat.  He touched on Anguillian affairs only when there was an appeal from a decision of the Anguilla Council, which he would pass on to the Secretary of State in London for a ruling, since he exercised very limited authority over the Anguilla Council.  The result was that, throughout this early period, the common Anguillian man and woman endured the unregulated government of their Council without the benefit of any real supervision by the colonial authorities.
In consequence, the official view for its first 175 years of the government of Anguilla, if colonial officials ever took the time to think of the government of Anguilla, was that the people were not governed by law.  In 1724, the Governor-in-Chief wrote[4] of the deputy governor of Anguilla, “If his cudgel happens to be one whit less than a sturdy subject's, then good night, Governor.”  Indeed, it was only in 1819 that the Governor-in-Chief in Antigua visited Anguilla and issued[5] formal patents to the deputy governor and the members of his Council.  This was the first and last time that Anguilla had a legally constituted government, until the British appointed an Anguilla Council under the Anguilla Administration Order of 1971.[6]
Not only was there no constitution or law under which a Council could be appointed in Anguilla.  There was no legislature in Anguilla or elsewhere to enact statutes under which the people could be governed.  Under the colonial regime of the day, no law enacted in any other colony could be extended to Anguilla.  The truth is that Anguilla was too poor, and of no consequence to the colonial authorities, since it contributed nothing to the Crown, to merit any expenditure of time or money on its administration.  The result was that up until the year 1825, the Anguilla Council, in effect, acted as the executive, legislative and judicial branches of the government of Anguilla, without any formal constitutional or statutory authority.[7]
On his one and only visit to the island in 1819, referred to earlier, newly installed Governor-in-Chief, Charles Maxwell, pointed out to deputy governor William Richardson and his Council the disadvantage of their existing without any form of legislature.  As the minute of his statement to them records, he said that,
It is much to be regretted as a British Colony, that this island should have been so long, and is, without a Legislative Body, constitutionally established, for the purpose of enacting good and wholesome laws for the good Government thereof;  that by reason of which the Registration of slaves, so urgently required by His Majesty’s Government, could not be effectually carried into execution, for the want of an Act of the island to coerce the enforcement of the same, the neglect of which may by its consequence, affect the dearest interest of the Colony in its most vital part, if delayed much longer.  The only remedy for obviating this defect would be for the inhabitants to Petition His Royal Highness, the Prince Regent, praying that he would be graciously pleased to grant them a Charter of Constitutions which, when prepared and sent to me, I shall transmit the same to His Royal Highness with a recommendation of it from myself.
However, the islanders did not succeed in submitting a draft Constitution for Anguilla, and attempts to provide a legislature for Anguilla were overtaken by certain events occurring in 1825.  The result was that none of the Leeward Islands laws passed for the registration of slaves and the amelioration of slavery were enacted for the benefit of the people of Anguilla.
The 1825 Absorption into St Kitts
In the year 1825, prolonged drought; regular hurricanes; and the long wars with the USA and France, which ended only in 1815, combined to bring the hitherto self-perpetuating Anguillian Council to its knees.  The British blockade of trade with the enemy during the preceding 30 years devastated the vital Anguillian privateering and smuggling industries, while the alternating periods of droughts and hurricanes destroyed the homes, small-stock and crops of the islanders.  The law suits in the island’s unofficial courts after 1780, traces of which have survived in the archives, demonstrate in a practical way just how the economy had collapsed.  For one thing, the sums being sued for declined from hundreds of pounds before the American Revolution of 1776 to just a few shillings and pence in the fifty years before Anguilla was joined to St Kitts.
Their economy having collapsed, the Anguillians submitted to pressure from London to be governed by St Kitts.  London’s main interest, as is evidenced in the correspondence of the Secretary of State with the Governor-in-Chief in Antigua in the early part of the 19th Century, was to have some form of law-making power in Anguilla that would apply law, particularly the slavery amelioration laws and the coming Abolition of Slavery Act, to the Anguillians.[8]
In that year, 1825, the St Kitts Legislative Assembly under pressure from London passed the Anguilla Act to provide for the Anguillians to elect one member to attend the St Kitts Legislative Assembly.[9]  From that year, laws made in St Kitts applied to Anguilla.  In this way, the Slavery Abolition Act of St Kitts in the year 1834 was effective to bring an end to slavery in Anguilla.  From 1825 Anguilla also began to share the judiciary of St Kitts.  The Chief Justice would visit Anguilla at intervals to conduct the civil and criminal court sitting.  All previous trials between 1650 and 1825 had been completely unauthorised by any enactment or other formal law or legal system.
The First Courthouse
The first official Courthouse on Anguilla appears to have been deputy governor Benjamin Gumbs’ house[10] on the top of Crocus Hill, turned over to public use after his death.  There is no surviving record of how this came to be.  The little complex of out-buildings around the main house served as the Customs House, Post Office and Police Station.  It was the administrative centre of the island, approached from South Hill and North Hill villages and the west via the public footpaths from North Hill, down into Katouche Valley and up the public path where the road leading to the Masara Resort now runs.  It was ideally located, as the port of entry of Crocus Bay was at the foot of the hill to the west, while the main town of The Valley lay immediately to the east.  When the Chief Justice visited Anguilla from St Kitts, the main building of the complex served to house the visiting court.  For at least the first 50 years after 1825, the visiting Chief Justices complain to the Secretary of State that, as there was no guest-house in Anguilla, they were forced to spend their nights on board ship in the harbour.  There was no point in his complaining to the authorities in St Kitts as the St Kitts Council had made it clear to the Secretary of State from the start that they would only accept responsibility for making laws for Anguilla on condition that not one penny for the island’s support was required from St Kitts.
After 1825, presiding at the sitting of the Court of Kings Bench to hear civil and criminal cases in Anguilla was Richard Williams Pickwood, CJ of St Kitts and Anguilla.  Sitting with him on the bench at the Courthouse were two Assistant Justices, who acted as assessors of the facts.[11]  A minute of their proceedings for several years is preserved in the records of the court held in the Archives in Basseterre, St Kitts.  Additionally, because Justice Pickwood was unusually liberal for his day, the detailed proceedings of some of his Anguilla trials have been preserved in the British National Archives.  This happened because the planters of St Kitts and Anguilla, who conspired to have him sanctioned by the Secretary of State and suspended as Chief Justice, prepared transcripts of some of those trials, together with affidavits commenting on them, and sent them to London as evidence of his unlawfully siding with the slaves against their owners.  These transcripts, and the complaints by the Anguillian planters against Justice Pickwood, provide revealing glimpses into social life in Anguilla in the first half of the 19th Century.
One was the 9 October 1832 trial of the island doctor and elected representative to the St Kitts-Anguilla Legislative Assembly for Anguilla, the Hon Benjamin Gumbs-Hodge, for the offence of assaulting the slave woman Charlotte and marooning her on Dog Island.  The indictment found by the Grand Jury was to the effect that,[12]
Benjamin Gumbs Hodge of the Road Division on the island aforesaid, Practitioner in Medicine, on the first day of March in the year of our Lord one thousand eight hundred and twenty six with force and arms at the Road Division aforesaid in the island aforesaid, in and upon one Charlotte, a slave, in the peace of God and of our Lord the King then and there being did make an assault on her the said Charlotte did then and there beat, bruise and ill-treat and did then and there unlawfully, injuriously and against the will of the said Charlotte and without any legal warrant or authority in that behalf, seize, take and drag and forcibly carry the said Charlotte from the Road Division aforesaid in the island aforesaid across the sea to a certain place called Dog Island and her, the said Charlotte, in the said place called Dog Island did unlawfully and injuriously keep and detain against the will of the said Charlotte for a long space of time to wit, for the space of three weeks then next following, and other injuries to the said Charlotte then and there did to the damage of the said Charlotte and against the peace of our Lord the King.
The court records indicate that the witnesses bound over to give evidence were Charlotte Filipasso, Richard Roberts, and the Hon RW Pickwood himself.  Prosecuting was Charles Thompson, Attorney-General of St Kitts and Anguilla.  Mr Woodcock, a barrister of St Kitts appeared for the defence.
As the Accused was about to be arraigned, Mr Woodcock moved that he objected to the Chief Justice both sitting in judgment at the trial and being a witness at the trial.  The minute records that the Chief Justice explained that the law of criminal procedure at that time was that a trial that was not presided over by the Chief Justice was void.  Besides, he would not permit an accused person to select who he thought should be or not be his judge, as this would betray the important trust confided in the bench.  Also, he explained, the two Assistant Justices or assessors who sat with him had explained that they were completely incapable of conducting a criminal trial without his assistance, and if he recused himself they must do the same.
Mr Woodcock protested that he had recently seen a case in ‘Fortescue’s Reports’ which was clear authority for the proposition that a judge could not also be a witness in the case he was trying.  However, the Chief Justice was adamant that the procedure he proposed to follow was perfectly in order, and he dismissed the motion.
The accused was accordingly arraigned and the jury of Anguillian planters and dignitaries duly sworn to hear the evidence.  The witnesses proceeded to testify and be cross-examined, after which the jurors of Anguillian planters and merchants not surprisingly returned a verdict of not guilty.
The various affidavits sworn in the subsequent complaints to the Secretary of State against Chief Justice Pickering requesting his removal from the position of Chief Justice flesh out the details of this extraordinary incident.  It appears, reading between the lines, that in 1826 the Chief Justice was sailing his sloop from his estate on the north-west coast of St Kitts to hold one of the first Assizes in Anguilla under the new regime.  To arrive at the port of Road Bay, he had to sail past the small Anguillian Cay known as Dog Island.
The Honourable Peter Lake was then the owner of the Road Plantation and one of the leading citizens of Anguilla.  He appears to have been smitten by the beauty of his slave Charlotte.  He brazenly conducted an affair with her that soon came to the knowledge of his wife.  Mrs Lake, with the cunning of a woman scorned, hit upon a device to get rid of Charlotte.  She secretly cut up her own clothes and linen and torched them in her yard in the absence of her husband, falsely placing the blame on Charlotte.   At Charlotte’s subsequent trial for malicious damage, Mrs Lake gave false evidence to the Magistrates that she had observed Charlotte committing the act. 
Charlotte’s protestations of innocence could not prevail against her white accuser.  She was convicted of the arson, and sentenced to be marooned on Dog Island for a month, as punishment.  The Magistrates had given Dr Benjamin Gumbs-Hodge responsibility for carrying out the sentence.  Now, Dog Island was, and is, a tiny, barren Cay, with just a shed and a shallow well on it for the use of the shepherds placed there to keep an eye on the goats and other small stock that it was home to.  And then, as now, marooning was and always has been an illegal punishment, not sanctioned in any legal text.
As Chief Justice Pickering sailed past Dog Island on his way to Road Bay, whom should he spy but the beautiful Charlotte, illegally marooned on the Cay in punishment.  On his arrival in Crocus Bay, accompanied by Charlotte, he had the Attorney-General bring charges against the man who had forcibly placed her on Dog Island.
The records of the subsequent impeachment proceedings against the Chief Justice preserved in the Public Records Office at Kew Gardens reveal what happened next.  The Chief Justice could find no free Anguillian who would testify at the trial.  Blazing with fury, he did what no judge, hopefully, would do today.  He took off his wig from his head, slipped out of his judicial gown, stepped down from the bench upon which he sat with the two Assistant Justices, and entered into the witness box to testify.  When he had finished giving his eye-witness evidence, he put back on his wig and gown and resumed his seat.  As we know, the jury found in favour of their colleague and friend and dismissed the case.  But, Anguilla thereby became the first colony in the British Empire that I am aware of where the Chief Justice acted not only as judge but also as principal witness in the prosecution of an offender at the Assizes.
After 1825, Anguilla’s legal and judicial system evolved in tandem with that of St Kitts, and the colony was now officially titled “St Christopher and Anguilla.”  In 1882, when the Council and Assembly of Nevis were dissolved, and Nevis joined to create a three-island colony, it was, from then until 1967, officially known as the “Colony of St Christopher and Nevis”.  The name of Anguilla was dropped.  So, for example, Anguillian car licence plates prior to the Anguilla Revolution of 1967 began with the prefix “CN”, standing for St Christopher and Nevis.  After the Revolution, one of the first actions of Ronald Webster’s Peacekeeping Committee was to replace the licence plate letters “CN” with the letter “A” for Anguilla.
The old Courthouse with its out-buildings stood from the mid-1700s, when it was first built, until 1 September 1950, when Hurricane Dog hit the island.  The hurricane completely destroyed the wooden structure, leaving only the stone foundations remaining.  The masonry basement, including the cellar which served as the prison cell while court was in session, can still be seen there.  The ruins are overshadowed by two large, ugly, black Rubbermaid water storage tanks and two equally large and ugly radio aerials raised in the Courthouse yard.  Goats, mimosa trees and strangler fig compete to see which can be first to totally destroy the abandoned remains.
With the passing of the Slavery Abolition Act of 1834, Special Magistrates appointed by St Kitts were stationed in Anguilla to oversee the Apprenticeship Period, 1834-1838.  After 1838, and until 1882, the Magistrates of Anguilla were usually professional lawyers who were appointed as Stipendiary Magistrates, meaning they got paid.  The first on record was Thomas Egar (who served 1835-1841).[13]  He was followed by other qualified lawyers who doubled as the St Kitts-appointed local administrator for Anguilla.  The most famous and long-lasting was Robert William Pickwood (1842-1862), Chief Justice Pickwood’s son.  He was so dedicated to Anguilla and so well-respected that, when he died in St Martin, the funeral that the French gave him was described in the official correspondence as almost a state funeral.
Sometimes, disreputable St Kitts civil servants were dispatched to Anguilla to serve as Magistrate and President of the Vestry, mainly it seems, to get them out of the way of the St Kitts administration.  One such was George Alsbury (1863-1864), the roguish clerk to the Basseterre Magistrates Court and public printer of Basseterre.  He was first appointed as the customs officer of Anguilla and then later as Magistrate.[14]  We do not know for certain what his alleged offences were, but as he was a customs officer, it is not difficult to guess.
From 1882, the Magistrate of Anguilla was replaced by an administrator from St Kitts, called the Warden, whose duties included sitting as Magistrate.  These St Kitts administrators were often the physician, primarily assigned to look after the health of the islanders.  Vincent F Byron, late father of the President of the CCJ, the Rt Hon Sir Dennis Byron, was the last Warden sent to Anguilla, and he left the island with the outbreak of the 1967 Revolution.
Wallace Rey’s Courthouse
It was only in the year 1964, under Mr Byron’s administration, that the St Kitts government replaced the old, destroyed Courthouse, lost fourteen years previously.  Local Anguillian builder, Wallace Rey, was appointed to head Anguilla’s public works after he retired from the US Air Force Base in Antigua where he had found employment at the start of World War II.  Wallace Rey designed and built the new court building.  Its magnificent, reinforced-concrete transverse arches that reach up from the foundations and go up and over the roof to descend on the other side made it one of the most imposing structures at the time on the island.  Its design reflects that of St Mary’s Anglican Church, which he also designed and built around the same time.
In the intervening years 1950-1964, after Hurricane Dog destroyed Governor Benjamin Gumbs’ old building, temporary quarters in a private home now replaced with a modern concrete structure occupied by NAGICO across from the High School, served as the courthouse.  Wallace Rey’s 1964 building functioned at first only as the courthouse.  Later, it was to become the home of the Anguilla House of Assembly, the Court of Appeal, the High Court, the Magistrates Court, and the Juvenile Court.  These all shared the one-room premises without difficulty since when the Court of Appeal visited no other court sat.  When the High Court sat, there was no Magistrate’s Court, as the Magistrate doubled as Registrar of the Supreme Court.  This was the system in place which I met when I was appointed Magistrate of Anguilla in August 1976.  At that time and for the next several years, the only lawyers in the public service were the Attorney-General and the Magistrate.  As for Wallace Rey’s building in which I served as Magistrate and Registrar, it is no longer a court house.  It presently serves as the offices of the Statistics Department.
The short-lived West Indies Federation broke up in 1961 when Jamaica chose to go into independence rather than stay tied to the smaller islands.  Trinidad and Barbados left shortly after, and the Federation was dissolved.  By the year 1967, the individual colonies of the Leeward and Windward Islands were themselves headed to independence.  They first entered into the intermediate status of ‘Associated Statehoodship’ with Great Britain.  The old, separate Supreme Courts of the Leeward Islands and that of the Windward Islands, re-established after the collapse of the Federation in 1961, were merged into the new ‘West Indies Associated States Supreme Court’.
The West Indies Associated States Supreme Court was established by the Courts Order of 1967.  This court had a short life-span in Anguilla.  Almost immediately, Anguilla was in rebellion against its continued enforced union with St Kitts and Nevis.  The Anguillians refused to be made ready for independence, tied permanently to St Kitts and Nevis.  The Anguilla Revolution of 1967 was to be the first successful armed revolt in the British West Indies.[15]  The thirteen members of the St Kitts police force manning the Valley Police Station were packed onto a LIAT airplane and shipped back to Basseterre.  The visiting St Kitts judge was jeered out of his courthouse and chased down the runway until he boarded a waiting flight to take him back to St Kitts.  In 1967, the revolutionary Anguilla Peacekeeping Committee appointed the social welfare officer, Raphael Lake, to be Magistrate and he functioned in that office until he was replaced by the British administration after their invasion of the island in 1969 at the invitation of the St Kitts government.
In 1971, the British Parliament passed the Anguilla Act, which permitted Britain to separately administer the Anguillian part of the ‘Associated State of St Kitts, Nevis and Anguilla’ while they attempted to negotiate a settlement between the administrations in Basseterre and The Valley.  Between 1971 and 1982, Britain selected and paid for a Magistrate, a High Court Judge, and three Judges of the Court of Appeal.  By agreement with the governments of St Kitts and Anguilla, these appointments were rubber stamped by the Judicial and Legal Services Commission of the West Indies Associated States Supreme Court.  Appeals from the Court of Appeal of Anguilla lay to the Privy Council.  At least one appeal, that involving the Junks Hole Estate dispute, went all the way to the Privy Council in the years before Anguilla re-joined the West Indian judicial family.
In 1980, the People’s Action Movement party gained power in St Kitts by defeating the Labour Party in general elections.  The administration of the new St Kitts-Nevis premier, Dr Kennedy Simmons, negotiated with Britain for independence.  The British agreed, on condition that St Kitts let Anguilla go on its own.  St Kitts-Nevis agreed, and Anguilla was brought under full colonial rule by the Anguilla Act 1980 of the UK Parliament.
By the year 1982, the West Indies Associated States Supreme Court came to be known as the ‘Eastern Caribbean Supreme Court’ (the ECSC).  This name-change was made to give recognition to the demise of the Associated States, and their replacement by independent Commonwealth Caribbean Countries throughout the region.  The Robert Bradshaw regime had previously vetoed Anguilla’s participation in any regional institutions, including the Court.  The new St Kitts government of Dr Kennedy Simmonds relented, and Anguilla began to join the various regional bodies.  In 1982, the Anguilla Assembly passed the Eastern Caribbean Supreme Court (Anguilla) Act, and Anguilla re-entered the fold of the regional judiciary.  From that time, the Magistrates of Anguilla have been appointed by the governor after consultation with the Judicial and Legal Services Commission.
Monica Joseph of Grenada (1982-1983) was our first regionally appointed High Court Judge.  She visited Anguilla from time to time from St Kitts to do the occasional criminal case or civil case that awaited the attention of a High Court Judge.  Her jurisdiction was somewhat reduced, since most felonies and misdemeanours had previously in the year 1978 been made triable summarily by the Magistrate, due precisely to the lack of a resident judge.  To this day, the Anguilla Magistrate’s Court has one of the most extensive jurisdictions in the Leeward Islands both civilly and criminally.  Justice Joseph was always pleased when she was presented with a pair of white gloves at the opening of the Criminal Assizes, as an indication that there were no criminal cases on the list to be dealt with.  That ceremony, unfortunately, did not persist for long.
Dame Monica Joseph, as she now is, was succeeded by a number of judges, including John Roberts QC of Sierra Leone and London; Sylvia Bertrand of Dominica and the BVI; Lloyd Williams of Jamaica and St Kitts (1991); and Neville Smith of the Bahamas and St Kitts (ca1992-1996), all of whom visited Anguilla occasionally from their assigned jurisdiction.
Adrian Saunders of St Vincent (1996-2000), subsequently of the Court of Appeal and later of the Caribbean Court of Justice, was the first ECSC High Court judge who actually lived in Anguilla.  He was followed by Ola Mae Edwards of Jamaica (2002-2003), subsequently Justice of the Court of Appeal; Janice George-Creque, later Pereira, of Virgin Gorda (2003-1009), subsequently a Justice of Appeal and later Chief Justice of the ECSC; Louise Blenman of Guyana (2009-2012), subsequently a Justice of Appeal; and, now, Cheryl Mathurin of St Lucia (2013 – present).
The New Courthouse
By the late 1990s, a dramatic increase in judicial activity in Anguilla meant that Wallace Rey’s old courthouse was no longer adequate to serve as a multi-purpose building.  The tourism industry had fuelled an enormous growth in the economy, and crime and litigation had mushroomed.  With British financial assistance, a new building was constructed at the eastern end of the government secretariat, adjacent to the former National Bank of Anguilla.  The plans were drawn by architect David Kenworthy and approved by a Committee of the bar and the Anguilla judiciary headed by Justice Adrian Saunders.  The new building now consists of three separate chambers.  They are the Magistrate’s Court, the High Court, and the House of Assembly.  This three rooms structure will serve Anguilla for the foreseeable future, but inevitably, in time, it will come to seem out-dated and in need of replacement.
Access to the laws of a country is essential for its good governance.  Not just lawyers need to know the law, everyone does.  The old saying, which we still apply to our citizens when they inadvertently breach a law, is that ignorance of the law is no excuse.  In most of the countries of the West Indies, all of the laws are available on a free government website online both to read and to download.  Anyone can go to the Government of Antigua and Barbuda website[16] and access any of the laws of that country.  Of course, if you desire to purchase the entire collection of the Laws of Antigua and Barbuda in book form, you will have to pay.  However, digital or soft copies of the laws are freely available to all.
This has not been so in Anguilla since the year 2000, when we published our new edition of the laws of Anguilla.  We are now prohibited from accessing the collected statutes that apply to us unless we pay several thousand EC dollars to purchase a set.  If I purchase a set of the laws from the A-G’s Chambers, I commit an offence if I share one of them with you on paper or by email.  According to the warning at the foot of each statute, I can be sued for breach of copyright.  If I do take a chance, and illegally share with you a digital copy of one of the laws of Anguilla, you will receive it in a format that is not searchable, and incapable of being printed.  I am informed that the only legal way to acquire a copy of an individual law of Anguilla is to purchase it for a minimum of US$25.00 from the A-G’s Chambers.
Even Government Departments are without access to the laws of Anguilla.  When, up to a year ago, I provided a legal aid clinic out of one of the Departments of Government, I enquired after one of the statutes I needed to advise a client on.  The response I got was that no one in the Department had access to the statute in question.  Since the Department was required to find the sum of US$1,500.00 to purchase a set of the laws, and could not afford the price, the Department had no copies of the laws of Anguilla.  I was given to understand that the same applies to many other Departments of the Anguilla public service.
The settlement of Anguilla, we have seen, started as a sanctuary for tax refugees.  Resistance to paying taxes is embedded deep in the culture of Anguilla.  To encourage us to pay our rates, or property tax, Government has found it necessary to introduce a 20% remission as a reward, if we pay our assessment at any time within the year it is due.  The culture of tax avoidance is so deeply ingrained, that we have established a financial services industry which provides services to the tax refugees of the world.
Among our first industries, we have seen, were those of smuggling and privateering.  Three hundred and fifty years later, the police seem ineffective in the face of growing imports of illegal drugs, guns and foreign sex workers.  The ancient industry of smuggling continues today, save that the illicit trafficking is in many times more dangerous commodities, and produces more pathetic victims.
Is it only me who sees the irony in the Anguillian authorities setting up a legal system that conceals the laws of Anguilla from her citizens, save for those who are very rich?  It seems anomalous that the authorities deliberately withhold our statutes from us.  The right thing is to make all our laws searchable online and printable without cost.  Payment should be demanded only for the paper and CD versions of the statutes.
We boast that Anguillians are intrepid entrepreneurs.  But, should we continue to permit our young men to start up “Sports Bars” for the exploitative employment of immigrant women on short-term “tourist visas”?  Illegal Santo Domingo lottery tickets are openly but illegally sold at every street corner shop or bar.  The “numbers” racket operates brazenly in several outlets in every village.  The police must know about all of this, but appear ineffective in shutting it down.
If this situation continues unchecked, the risk is that Anguilla will be known as a country of smugglers, human traffickers, and drugs dealers, a people who know no law.  So, what’s new about that, you may ask?
An extract from this article previously appeared in the magazine published in April 2017 commemorating the 50th Anniversary of the Anguilla Revolution.


[1]       John Oldmixon, The British Empire in America (1708), Vol 2, p.264.
[2]       The term ‘cattle’ at the time included pigs, sheep and goats.  It was probably this last which the settlers brought to the island.
[3]       Abraham Howell, Anguilla’s first deputy governor, in a patent preserved in the Anguilla Archives stored at the Court House, describes himself as having been elected as deputy governor in the year 1666.
[4]       CO.152/14: Governor-in-Chief John Hart to the Committee for Trade and Foreign Plantations.
[5]       Anguilla Council Minutes, 1819-1841, St Kitts Archives, photographed and transcribed by Martha Burrows and Heather Nielsen.
[6]       For some years after absorption by St Kitts in 1825, the St Kitts-Anguilla Legislative Assembly introduced a form of local government under the provisions of the Vestry Act, but its power was very limited.  Its meetings were chaired by the Magistrate.
[7]       Anguilla Council Minutes, 1819-1841, previously cited.
[8]       See for example the various correspondence and dispatches at CO.407/1 between Lord Bathurst and Governor-in-Chief Maxwell on the need for Anguilla to have laws.
[9]       CO.240/16, at folio 315: Act No 198. An Act to Authorise the Freeholders of the Island of Anguilla to Send a Representative to the House of Assembly in the Island of St Kitts (usually referred to as the “Anguilla Act”.
[10]     Its dimensions are so modest that one has difficulty referring to it as his ‘Estate Great House’.
[11]     CO.240/17, folio 1. The law which enabled this sitting was entitled, Act No 1: An Act for Establishing Courts and Settling Due Methods for the Administration of Justice in the Island of Anguilla.
[12]     Anguilla Court Records 1827-1845, located in the St Kitts Archives, Basseterre, photographed and transcribed by Martha Burrows and Heather Nielsen.
[13]     CO.239/67, Dispatch No 13: Mr McPhail to EG Stanley, Secretary of State for the Colonies
[14]     CO.239/111, Dispatch No 40/3473 of 5 March 1864: Governor Steven J Hill to Lord Newcastle.
[15]     Not emulated elsewhere in the British West Indies until the Grenada Revolution of 13 March 1979 brought Maurice Bishop’s New Jewel Party to power.
[16]     For the Antigua statutes, see; http://www.laws.gov.ag/acts/.

Monday, February 27, 2017

50 Years of the ECSC

CELEBRATING THE PAST, EMBRACING THE FUTURE: The Eastern Caribbean Supreme Court at Fifty, 1967-2017
By Justice Don Mitchell (Ret)

Introduction

In this presentation, I shall take a very personal, indeed, idiosyncratic, look at the history of the legal profession in our jurisdiction of the ECSC, and the challenges facing our twin professions of lawyer and judge.  I shall start with an examination of what it once took to become a Caribbean lawyer, and briefly compare the historical process with how it is done now.  And then, I shall look at how the technology of the practice of law and of the judicial process has changed in the Organisation of Eastern Caribbean States (OECS) sub-region over the past fifty years.
When I began my professional practice as a young and callow lawyer in Basseterre in September 1971, I did my own typing on a portable Olivetti typewriter.  I did a touch-typing course after I graduated from law school, as I knew it would be years before I could afford to pay a proper typist to help me.  So, I prepared to do it all myself.  Many young lawyers today face the same challenges, but the work environment has completely changed.  In my day, the equipment necessary for the practice of law had hardly progressed beyond that of the 18th Century.  The only items in my Chambers that James Boswell would not have recognised were my manual typewriter, sheets of carbon paper, and Bic ballpoint pens.
A Legal Education
I was called to the Bar in London in June 1971, as thousands of West Indian Barristers had for 300 years before me.  There was, at that time, neither a Cave Hill Campus nor any Sir Hugh Wooding Law School that I could go to.  There was no point in my getting a US or a Canadian law degree, as those qualifications were unrecognised, in the sense of allowing me to practise law back home.  The only legal education accepted in the islands was a UK one.
If you were a brilliant student you might win a scholarship to Oxford or Cambridge University.  Otherwise, you might stay home and do an external degree at London University.  Or, if your family could afford it, you could privately attend a UK university, or the Inns of Court School of Law, and be called to the Bar of England and Wales, before you came back to practise law in the OECS.  That is what I did, with the help of a scholarship from my father’s employer, Tate & Lyle Ltd.
I have often been asked, why was a law school called an “Inn of Court”?  As with so many things in the law, the name is a matter of history.  In the earliest period of English legal education, say from about 1100 to about 1300, the way a young, would-be lawyer got qualified was by following the Judge around while he was doing a Circuit of the towns in the County, and listening and learning as he heard cases and settled disputes.  The student would attend court and take notes of the legal issues and the Judge’s rulings.  During the evenings, the students gathered around the Judge at dinner at the same hotel, or inn, where the Judge was staying.  They asked him questions about the disputes he had settled that day, and they took notes.  This being an inn, they drank a lot of wine.
How did a lawyer’s qualification to practise law come to be known as a “call to the bar”?  The Judge would arrive in a town where his Commission from the King authorised him to sit and to do justice.  His Commission would be read out aloud by the Town Crier, and petitioners for justice would begin to gather.  A corner of the market hall would be cleared of traders, and new straw thrown down on the floor so the Judge would not dirty his shoes.  A bench and a table would be set up for him to hear the suits brought by the town’s citizens.  Early English judges really did sit on a simple bench in a market hall.  A plain wooden barrier would be erected across the floor of the hall to keep the pigs and sheep, which typically shared market hall space with their traders, away from the Judge.  The litigants who had paid a fee to a court official to draft their claim or defence would throng around waiting for their case to be called.  And, the students would be present ready to take notes.  Only the bar kept them from jostling the Judge.
When a case was called, the Judge might ask the litigant or accused person if he had a lawyer.  If he indicated he did not, and the Judge thought he needed one, he would look around the hall.  If there was no willing advocate available, or the litigant could not afford one, and the Judge saw a student of his who he thought was sufficiently advanced in his studies, and could help the accused, he might call on him to approach the bar, and he would ask him to assist.  This process amounted to recognition that the student was now accepted by the Judge as worthy of addressing the Court on a case.  The student was then said to have been “called to the Bar”.
By the 15th Century, there were established in London around the city’s civil courts several Inns of Court, housing students, lawyers and judges.  Eventually, they were whittled down to four:  Grey’s Inn and Lincoln’s Inn, the Inner Temple and the Middle Temple.  And, why would a law school be called a “Temple”?  They were so-called since they were established in the properties originally owned by the ancient religious Order of the Knights Templar.  After the abolition of the Order in 1312, lawyers came to occupy the Temple buildings.  They formed themselves into two societies, the Inner Temple and Middle Temple, first mentioned by name in a manuscript yearbook of 1388.  Their Charter as law colleges was signed by King James I in 1608.
As Anthony Wagner wrote,[1] the Inns of Court
became in effect the third university of England, to which the nobility and gentry sent their sons to acquire knowledge of the world and of a subject then as useful as any for the management of property and the pursuit of worldly and political ambitions.
The Inns of Court were thus, though not given a charter as a university, the third oldest law school, after Oxford (1096) and Cambridge (1209).  The Inns were organised on the same basis as the colleges at Oxford and Cambridge, offering accommodation to practitioners of the law and their students, and facilities for education and dining.  Professional law exams were introduced at the Inns for the first time only in the year 1853.
Up to the time I qualified as a Barrister, you could not be called to the Bar unless you had dined the requisite number of a dozen times at your Inn.  Passing your examinations was not sufficient for you to graduate.  The dinners were compulsory, and were a reminder of the early history of legal education.
In the year 1674, the Leeward Islands Colony consisting of Antigua, St Kitts, Nevis and Montserrat[2] got its first federal style legislature with a General Assembly made up of two planter and merchant representatives from each of the member islands.  It met regularly until 1711.  By the time of the General Assembly of the Leeward Islands in 1705, several of the representatives had been called to the Bar in England.  They set about establishing a system of law familiar to them for their islands’ governance.  One of the first Acts they passed was to declare the common law of England part of the law of the Leeward Islands.[3]  From that time on in our islands, Barristers have always done all the legal work done in England up to the reforms of 1875 by Barristers, Proctors, Attorneys, and Solicitors.[4]  So it was that, when I was called to the Bar in St Kitts in 1971, I was admitted as a ‘Barrister and Solicitor of the West Indies Associated States Supreme Court’.  This was the court that was established by the Supreme Court Order of 1967, and which is still our court, though renamed the Eastern Caribbean Supreme Court.
The English came to separate the work of Barristers and Solicitors long after we in the Eastern Caribbean had adopted the common law, and our courts came to recognise English qualifications.  As with the United States of America, most of our islands never adopted the system of the two separate legal professions of Barrister and Solicitor.
An OECS law student could until recently, in theory, go to England and study to be a Solicitor rather than a Barrister.  However, when I was a law student, a student Solicitor, called an ‘Articled Clerk’, had to have family and other connections to join a firm of Solicitors in England.  Few West Indians had that advantage.  Also, a Solicitor’s education, including passing the examinations set by the Law Society, lasted for a minimum of five years, compared to the three years typically required to be called to the Bar.  Very few Eastern Caribbean lawyers, mainly some from Trinidad and Jamaica, took the longer route of studying to become a Solicitor.
I went from Trinidad to the UK in 1964 to complete my “O-Levels”, and to do my “A-Levels”, as my High School did not offer A-Levels.  Once I got my A-Levels, I was qualified to apply for admittance to an Inn and to study for the Bar.  I joined a Jamaican school friend, who was also planning to study law and come back to the West Indies, in gaining admittance to the Inner Temple in London in the year 1967.  I was called to the Bar of England and Wales in 1971.  The system of education at the Inns of Court was a thorough one.  It involved attending lectures given by law professors during the day,[5] and tutorials by practising barristers in the evening, followed by exams at the end of the year.  There were among us a few students who spent as little as one year at the Inns of Court School of Law.  They had first obtained a university bachelor of laws degree, and were required to do only a shortened, crash course at an the School of Law to be qualified to be called to the Bar.
For centuries, only Oxford and Cambridge Universities provided the LLB degree.  Everyone in the Eastern Caribbean who wanted to be a Barrister, and was like me not bright enough to win a scholarship, or rich enough to privately attend Oxford or Cambridge University, had to join an Inn and attend the Inns of Court School of Law for a legal education, lasting a minimum of three years, plus eating the requisite number of dinners.  With a degree, you were only required to do the final year at the Inns of Court School of Law, plus eat the requisite number of twelve dinners.
London University was founded in 1836, and is the third oldest university in England.[6]  What was remarkable about this university was that from as early as the year 1858 it allowed students to do the LLB course externally.  By the early 20th Century, the first wave of redbrick Universities, such as Liverpool and Birmingham, began to offer law as a degree course.  Warwick University and several others were chartered in the late 20th Century, and also offer the LLB degree.  Today, there are dozens of institutions offering the LLB degree, and many West Indians have taken up the opportunity to study for the LLB at them.
But, London University was different.  From the earliest period, you could stay at home in Grenada or Antigua, and do most of the course by mail, going to the UK only for a few months to sit your final exams.  For many West Indians who could not afford to spend years in the UK attending a full-time course of studies, that was a godsend.  Clearly it was much more affordable to have to spend only a few months away in London than to have to spend the entire three years.  It may have taken a little longer that way, maybe four or five years to get the degree, and then another year or so in London to be called to the Bar, but it was affordable.  In those early days, once you were called to the English Bar, you were automatically qualified to be called to the Bar anywhere in the Eastern Caribbean.
When you passed your final exams at the Inns of Court School of Law, you obtained what was called the “Degree of the Utter Bar”.  In a magnificent ceremony held in the Great Hall of your Inn, after eating good food and drinking much wine, you were presented with your Certificate of Call to the Bar, which signified that you had successfully passed your exams and were now qualified to practise at the Bar of the courts of England and Wales.
The system of Caribbean legal education I have described has all now passed into history.  Every OECS law student in England today is required to first obtain a bachelor’s of law degree from a university, and then attend the requisite professional training course for one year.  Since 2008, the Inns of Court no longer provide a legal education in England.[7]  But, you still have to join an Inn, and only your Inn can call you to the Bar of England and Wales.  And, you have to complete 12 of what are now called ‘qualifying sessions’ in order to be called to the Bar.  Qualifying sessions take a number of forms.  Yes, they still include attending dinners at your Inn.  But you can, alternatively, attend special education days, or attendance at weekends, either at your Inn or at a residential centre, such as Cumberland Lodge, which are convenient methods for out-of-London students.[8]
Since the mid-1970s, the University of the West Indies and the various law schools associated with it now provide a much less expensive and much more relevant legal education for the vast majority of OECS law students.  In some of our islands, particularly the British Overseas Territories, a British legal education is not only acceptable, but is for many of us, because of UWI’s restricted quota system, the only practical way to become legally qualified.  With a British legal qualification, an OECS law student who wishes to practise law at home needs only do a shortened Conversion Course at one of our Law Schools.  Additionally, as part of a reciprocal arrangement, certain US and Canadian qualifications are now recognised, and lawyers with those qualifications may be admitted to practise law in the OECS after attending a Conversion Course.
The Practice of Law
In the decade of the 1960s, we West Indians were just beginning to emerge from the pre-constitution paradigm of the practice of law.  That paradigm rested on the principle that the courts do not have the jurisdiction to question the validity of an Act of Parliament.  Only the House of Assembly could amend or set aside a statute.  A judge’s role was to interpret it and apply it.  Then, commencing in the year 1961, Jamaica, Trinidad and Barbados adopted independence Constitutions which proclaimed the supremacy of the Constitution.  It took the 1970 trade’s union case of Collymore v A-G[9] from Trinidad to establish that parliament’s laws are subject to the Constitution of a Commonwealth Caribbean Country, and the role of the Supreme Court is to be the guardian of the Constitution.  It took the 1977 gun court case of Hinds v R[10] to finally put to rest any lingering doubts caused by any real or perceived limitations of the Collymore judgment on the question of the supremacy of Commonwealth Caribbean Constitutions.
How far have we moved since those early days!  Today, it is routinely and universally accepted that the Supreme Court can amend or set aside a statute, if it finds that the words of the statute are in conflict with a provision of the Constitution.  Constitutional and administrative law issues now take up large chunks of court time.  And, with our societies becoming ever more litigious, our courts are being called on to deal with more complex and difficult issues than our predecessors, engaged as they were in running-down cases and larceny prosecutions, could ever have imagined.
When I began to practise, society was much less litigious than it is today.  For most of our citizens the law lay in the background of people’s lives and society.  Once we paid our debts, stayed out of jail, and kept as far from the law courts as possible, we would be all right.  Now, as Canadian Chief Justice Beverley McLachlin has put it,[11] law permeates every facet of our society.  Criminal Codes have amplified the old offences, and created a host of new ones, from drugs trafficking to money laundering.  Since the negligence principle was defined in Donoghue v Stevenson,[12] the law of tort has broadened enormously.  The law of contract has expanded to impose liability for non-economic, intangible losses.  The regulatory state has brought a host of rules, regulations and statutory tribunals into every aspect of economic and social life, all requiring supervision by the courts.  Since the 1970s, our courts have been called on to recognise and protect the basic liberties inherent in each individual:  freedom of speech;  freedom of religion;  freedom of movement;  and freedom from discrimination, among others.  Constitutional and human rights cases now play a larger role in using court time than ever before.
The Courts
The result of this rising tide of litigation is that courts now find themselves more and more involved in issues that touch and shape our responsibilities to each other.  More and more, Judges matter; and more and more, as McLachlin CJ notes, Judges are scrutinised and criticised.  Add to that the technological revolution, and the demographic and social pressures caused by our increasingly mobile and ethnically and religiously diverse populations, and the stresses on our societies that our courts are increasingly being called on to deal with, continue to grow.
If our judiciary is to maintain the respect of our societies, the traditional judicial qualities of impartiality, independence and integrity will need to be maintained and strengthened, and new practices will have to be adopted.  The modern West Indian Judge will increasingly be called on to adapt old principles to modern realities.
Judicial impartiality will increasingly be challenged by the modern ethic of corporate market-place efficiency.  Judges will be called on to ‘practise management reforms’; show ‘more effective use of resources’; be ‘more responsive to the needs of society’; and, more accountable for their actions.  We will be asked about our ‘performance results’ and be subject to ‘program-based budgeting systems’, all imposing a greater risk of political direction.
Seventeen years ago, in the first Special Sitting of the Court of Appeal to receive an address by a Chief Justice marking the opening of the new law year,[13] Sir Dennis Byron introduced us to his judicial reform programme.  This included,
·        the start of the backlog reduction exercise;[14]
·        the publishing of the court’s website;
·        the shortly to be introduced new Civil Procedure Rules;
·        the introduction of case management, whereby the progress of cases would be transformed from lawyer-driven to a court-driven process.
·         Prominent in this address was the news that the court had hired its first ‘Information Technology Manager’.
In his address two years later,[15] Sir Dennis described the beginning of the main features of our present-day court system.  These included,
·        the wiring of our courthouses, some dating back to the 18th Century, to facilitate the use of computers by the court and lawyers;
·        the air-conditioning and general modernising of our courtrooms;
·        the introduction of a new selection process for the appointment of our Judges by the Judicial and Legal Services Commission based on principles of transparency, competition and merit;
·        CPR 2000 had come into effect, replacing the old Rules of the Supreme Court;
·        the backlog reduction programme had disposed of a vast number of ancient cases, and the backlog was considerably reduced;
·        the case management software package, JEMS, had been introduced into the ECSC headquarters and was being deployed throughout all the courts of the region;
·        court managed mediation was about to be introduced in the courts of the region to assist in the disposal of cases which were suitable for this process;
·        audio recording had been introduced in St Lucia and Dominica and was due to be introduced in all the islands, as Computer Aided Transcription Reporters from around the region began to be trained at the College in Tortola;
·        the programme to regionalise the magistracy had begun;
·        formal legal aid programmes were being promoted in all the islands;
·        the Judicial Education Institute housed at the ECSC headquarters in St Lucia had become increasingly visible and productive through a number of programmes held in the previous law year.  There had for the first time been workshops for Judges, Magistrates and Registrars on such varied matters as money laundering; telecommunications law; sentencing; orientation for new Judges, masters and magistrates; and
·        training of mediators throughout the region was in progress.
Since then, further improvements and innovations have been introduced by subsequent Chief Justices.  These include,
·        An enormous growth in personnel.  While the ECSC headquarters in the year 2000 employed a total of 6 professional staff, being 4 Court of Appeal Judges, a Chief Registrar and a Librarian, assisted by 7 support staff, now there are 26 professional staff.  There are now 6, instead of 4, Court of Appeal Judges, and 20, instead of 2, professionals.  One third of the professionals at headquarters are lawyers, including 5 Judicial Research Assistants.  The number of support staff has grown from 7 to 19;
·        A professional statistician now collects and publishes statistics on the work of all the courts of the sub-region;
·        All courts were supplied with computers, scanners, printers and ancillary equipment, including the appropriate software to enable office automation facilities and tools for the most modern techniques in case management;
·        Every Judge and Registrar was supplied with a laptop computer with the capacity for linkage to the court office network;
·        The increased administrative capacity has enabled headquarters to provide technical assistance to all court offices throughout the sub-region.  The growth in human and technical resources over the past eighteen years has necessarily impacted the budget, which tripled in size from EC$5 to over $18 million;
·        The research capabilities of Judges and Registrars were strengthened through the use of QUICKLAW and LEXIX-NEXIS;
·        The court website began to publish all judgments given by our courts, newsletters, and other information on the court system, in a cost-efficient manner and free to users;
·        Practice Directions, copies of which are available on the court website, began to be published, playing a vital role in clarifying various rules and enhancing the more accurate use of procedure;
·        It became standard procedure for court lists to be automatically generated by JEMS and circulated to all lawyers by email;
·        Court filings by email, pursuant to the two relevant Practice Directions, has now started;
·        New Probate Rules have been drafted and circulated to the Bar Associations for comments, which when published will harmonize the procedure across the jurisdiction;
·        Additional specialist divisions of the court, with their own Rules and Practice Directions, have been created, that is, a Criminal Division, a Commercial Division, and soon to be a Family Division, each with power to manage cases and with a view to more efficiently handling the increasing volume of work;
·        All-year criminal sittings, running in tandem with the civil sittings, have been introduced in all but the smaller States and Territories of the OECS, resulting in a reduction of the backlog in criminal cases which had plagued our criminal justice system for decades;
·        Court-administered mediation on a voluntary basis in civil disputes was now widespread throughout the sub-region;  and, we are now considering making mediation mandatory in all civil cases, and introducing mediation in relation to less serious criminal cases;
·        Video Link facilities were installed at the High Courts and the ECSC Headquarters during 2010-2011;  the facility has been in operation and facilitates case management, Chamber Hearings, and several Court of Appeal sittings between headquarters and the member States since then, with considerable savings in the expense of travelling, and a speeding up of hearings which can now be disposed of outside of regularly scheduled sittings;
·        With the enormous increase of litigation over the past 50 years, the demand for appellate services has increased to the extent that the Court of Appeal now routinely holds two separate sittings simultaneously;
·        A list of trained and court-approved transcriptionists in most jurisdictions has been circulated to lawyers for their use; and transcripts of the day’s evidence are now prepared in as little as 24 hours.
·        The hearing of evidence by video-link in criminal cases in St Lucia and St Vincent is now governed by a Practice Direction;
·        Last year, 2016, saw Antigua and Barbuda use the Evidence (Special Provisions) Act 2009.  For the first time a live video feed from a witness outside the State was used in a criminal trial in the High Court.  As the use of this technology spreads, all of our member States and Territories will in due course adopt this procedure so as to enjoy this improved level of efficiency and cost saving.  The advantages to our people are that,
·        There will be a tremendous saving in costs, and a more expeditious resolution of matters in court;
·        Non-essential witnesses, such as experts and others who are not resident in the State, will not be required to spend time and money travelling to and from court;
·        Police officers will be freed up for front-line duties;
·        The number of adjournments will be reduced, enabling the swifter disposal of cases;
·        Evidence can be taken from children and vulnerable witnesses in a manner that is safe and non-threatening;  and
·        Witnesses in correctional facilities will no longer be required to be transported to the court at great cost and increased security risk.
The Role of Information Technology
The Caribbean Court of Justice (CCJ) will increasingly in the coming years become our final court, so it is worth looking at some of their I.T. that will soon affect us.  At the ECSC Court of Appeal and the CCJ, Judges and lawyers now routinely work on their laptop or iPad in court.  Notes are made and cases referred to are accessed online in real-time, while the court is listening to evidence or addresses.  At the end of the day, certainly at the CCJ, lawyers and Judges on their way out of court are presented with a printed transcript of the day’s proceedings.
The CCJ is presently implementing a bespoke electronic court management software suit called Curia.  Curia has three modules called Folio, Attaché, and Sightlines.  Folio is the name for their electronic filing platform.  Attaché is their case management system.  And, Sightlines is their performance management toolkit for Judges and administrators, providing access to data and reports.  In the ECSC, we have our own version of these three software packages in the form of our JEMS.
Earlier this year, Sir Dennis established the Curia Register Project which is working on getting every Judge, Registrar, Magistrate, Barrister, Solicitor, and Attorney-at-Law in the West Indies, from Bermuda and Belize in the North to Suriname and Guyana in the South to become registered participants in the CCJ database.  This database is not intended to replace similar OECS efforts, but may well help:  to reduce the burden on Secretaries of our Bar Associations trying to keep track of membership;  Registrars attempting to police the Legal Profession Acts; and litigants searching for the right lawyer to represent them.
I am convinced of the benefits of the Curia system, and have agreed to be named as the chair of the committee working on the project, as a result of which you are all likely to be pestered by me in the coming months to participate by submitting your personal and professional data to enter into the Curia database.  The benefits are many.
·        Once an attorney is registered, she will no longer have to input personal and professional information when making an e-filing;
·        It will automate the provision of personal and professional information on lawyers, judges and case management officers;
·        It will monitor things like continuing legal education, and even matters for the welfare of lawyers;
·        It will improve the system of requiring lawyers to be of good standing and pay their annual dues;
·        It will automate the issuing of practice certificates, and provide a transparent manner for the public to check on practitioners;
·        It will assist our Registrars, who have to calculate the number of years standing for each lawyer to be able to fix the scale of fee payable annually; and
·        It will automatically show which lawyers have professional indemnity insurance, something that litigants are clamouring for.
The Future
As I consider the changes that have taken place in the practice of law in the OECS in the past 50 years, that we could, at the start of the period, never have imagined were possible, I realise that any attempt to forecast what the practice of law will be like after another 50 years lies in the realm of science fiction.  But, some things seem obvious to me now.
In just a few years’ time, no lawyer will employ a messenger to attend at the courthouse to file a paper claim or defence; this will all be done automatically by accessing the Registry online.  The court Registry will be replaced by the cloud.
Already, most modern West Indian lawyers’ offices do not house a single textbook, unless it is for decorating the walls in the conference room.  In the modern law firm, all legal research is now done online.
There are things that lawyers have traditionally done that can be automated today.  Artificial or Augmented Intelligence (A.I.) is coming to the practice of law and the determination of disputes.  There is no sense fighting it.[16]  IBM’s Watson is considered by many to be the most significant technology to come to law.  According to a May 2016 release, ROSS, 'the world's first artificially intelligent attorney' powered by Watson, recently landed a position at New York law firm Baker & Hostetler handling the firm's bankruptcy practice.[17]  Lawyers ask ROSS research questions in natural language, just like they were talking to a colleague, and the A.I. 'reads' through the law, gathers evidence, draws inferences, and returns with a 'highly relevant', evidence-based answer.  The program gets smarter and continues to improve the more it is used.  It also keeps track of developments in the legal system, especially if anything pertains to a lawyer's specific case.
As A.I. becomes more efficient and pervasive, most lawyer’s routine legal work, such as writing opinions and lawyers’ letters, and drafting contracts and wills, will be handled by software.  Today in London and New York, if you feel you have been wrongfully issued with a parking ticket, you can fill out a questionnaire and hire the free on-line robot lawyer DoNotPay.  It fires off a letter contesting the citation.  Has your flight from Miami to Paris been delayed, and you want some compensation?  DoNotPay will draft the letter for you.[18]  The 20-year old Stanford University student who developed the application claims a success rate of 60% in the 200,000 cases DoNotPay has handled in the last two years.[19]
While systems like ROSS and DoNotPay are unlikely to displace the reasoning processes of lawyers, there are very few legal tasks that require a lawyer to apply ‘bespoke’ reasoning.  More commonly, lawyers apply ‘proven’ approaches in slightly different contexts.  This is where bot-lawyers like ROSS and DoNotPay will play an increasingly important role.  It may take a little longer for A.I. to invade the judicial realm, but that will become commonplace.  There are many rulings the judge is called upon to make that are routine, and for which the necessary algorithms will soon be written.  A ‘bot judge’ will then be able to deliver an automated and instantaneous ruling.  The result is that law will become more accessible and transparent, as it should be.[20]
In time, there will be no requirement for witnesses to go through the process of attending a trial in person.  After all, we no longer accept trial by battle as the only way to arrive at the truth.[21]  Nor do we any longer accept that torture is the natural way to obtain true evidence, at least most of us don’t.
In the years to come, the court will observe a hologram, a three-dimensional representation of the witness sitting in the witness box, broadcast electronically from the place where the witness is located, and observe and listen to his or her hologram speaking, to determine what the truth is.  Sensors will inform the Judge and lawyers immediately a witness is not being truthful.  A transcript will be created in real-time, and the whole process will be recorded for future use, e.g., on an appeal.
Advocacy will become entirely electronic.  Oral arguments are already becoming a thing of the past.  Legal practitioners will have to rely on their filed submissions.  At the conclusion of the trial, the Judge will no longer sit in person and read the judgment aloud.  Instead, the Judge will deliver the judgment by posting it onto the court’s website, and move on to the next case before the parties have even had the time to read it.
Today, I can sit in my office at home in Anguilla, and access a streaming video of the English Supreme Court sitting in real-time and hear and observe the argument in every appeal that the court is dealing with, and the final judgment when it is given.  The day will come when we will be able to do the same thing for any trial in any court in the OECS.
Jury trials will become obsolete in criminal cases as they have in civil ones.  Lay persons will sit with the Judge to assist in monitoring the sensors that help separate truth from falsehood, while the Judge refers to the appropriate device that informs him or her which rules are applicable.
In time, the courthouse itself will become a thing of the past.  When the judge will no longer be required to sit in the same building as the lawyers, the parties, or the witnesses, there will be no purpose served by having a dedicated structure for the resolution of disputes.
As we develop a strong and robust e-system for our judicial process, we will need to be sure we have secure firewalls and real-time backup.  There is no point having the most up-to-date electronic justice system that a 20-year old student can hack into, (and change all the amounts of damages awarded, while tinkering with the lengths of prison sentences imposed).  I.T. technicians already need to constantly improve their skills or they risk becoming obsolete five years after they graduate.[22]  There is an argument that ‘the cloud’ will soon render the I.T. department itself obsolete.[23]
We will need to make sure the key consumers:  judges, lawyers and litigants, are confident in buying into the coming electronic justice system.  If this is successfully managed, the likelihood is that in the years to come an entire court case will be completed without any of the judge, lawyers, parties, or witnesses ever having visited a courtroom, and without leaving any physical paper trail.[24]  The technology exists today.  The courthouses where we now work will be converted to museums of law, where ancient artefacts such as books and pens, and videos of the eminent lawyers of the past, eloquently holding forth, making submissions in oral support of their client’s case, will be exhibited only to excite the curiosity of schoolchildren.
A presentation to mark the 50th Anniversary of the establishment of the Eastern Caribbean Supreme Court, made at the Sandals Grande Hotel, Antigua, on Monday 27 February 2017.


[2]     Anguilla and the Virgin Islands were not represented, being too small to have their own Assemblies.
[3]     It was initially entitled An Act for Preventing Tedious and Chargeable Law Suits, and for Declaring the Rights of Particular Tenants.  In time, as most of its provisions were repealed, leaving only section 2 remaining, it came to be re-named The Common Law (Declaration of Reception) Act.  This Act can still be found under that title in any good collection of laws of any of the Leeward Islands.
[4]     A Proctor practised in the Admiralty and Ecclesiastical Courts, an Attorney in the common law courts, and a Solicitor in the Courts of Equity.  The Judicature Acts, 1873-1875, of the United Kingdom Parliament, combined all three in the common professional title of Solicitor.
[5]     Lectures were then given in Lincoln’s Inn’s Old Hall under Hogarth’s immense (10 feet by 14 feet) 1748 painting of “Paul before Felix”.
[6]     Durham University, which was founded by statute in 1832, also lays claim to be the third oldest university in England, but at first it only admitted students for the Anglican Church ministry: http://www.durhamstudent.co.uk/resources/university-history/
[7]     The Inns of Court School of Law is now incorporated in the City Law School where you get your LLB: https://www.city.ac.uk/law/about.
[9]     Collymore v Attorney-General (1967) 15 WIR 229.
[10]    Hinds v The Queen [1977] AC 195.
[11]    Rt Hon Beverley McLachlin, PC, Chief Justice of Canada, The 21st Century Courts: Old Challenges and New, the fourteenth AIJA Oration in Judicial Administration, a speech delivered on Friday April 28, 2006, in Sydney, Australia.
[12]    Donoghue v Stevenson (1932) AC 562.
[13]    The Rt Hon Sir Dennis Byron: An Address to Mark the Opening of the Law Year, 2000/2001; delivered simultaneously in the courthouses of all the OECS countries by video link on Monday 18th September, 2000, from Castries, St Lucia.
[14]    Many of our courts had hundreds of cases, some as many as fifteen years old, stuck in the system, and the programme was designed to remove these cases by either trial or striking off before the planned new Civil Procedure Rules were brought into effect.
[15]    The Rt Hon Sir Dennis Byron: An Address to Mark the Opening of the New Law Year 2002/2003, delivered by video link on 16 September 2002 from Charlestown, Nevis.
[16]    Susan Beck, ‘Technology Shapes the Future of the Law’ in The American Lawyer, August 4, 2014.
[20]    Paul Lippe and Daniel Martin Katz, ‘10 predictions about how IBM’s Watson will impact the legal profession’ in The New Normal, posted October 2, 2014.
[21]    Trial by battle was not officially abolished by Parliament until the year 1819.  The year before, a litigant threw down a gauntlet in anger in front of the judges of the King’s Bench, and demanded his right.  The Lord Chief Justice, Lord Ellenborough, decided this method of trial was still a permissible option under law;  but the other party refused to go through with the procedure, and the case was dismissed:  https://en.wikipedia.org/wiki/Ashford_v_Thornton
[24]    Justice Ming W Chin, ‘The Court of the Future: Use of Court Technology in the Next Generation’ cited in ‘Embracing the Courts of the Future: Final Report of the Next Generation Courts Commission, a partnership of the Supreme Court of Georgia and the State Bar of Georgia.