Court backlog issues mostly ‘beyond control’ of judges
The backlog of criminal cases in the Supreme Court is smaller than has been reported and many of the causes are beyond the control of judges and court staff, according to the Chief Justice.
Larry Mussenden, Juan Wolffe, the supervising judge of the criminal list, and Alexandra Wheatley, the Registrar of the Courts, shared fresh information about the number of cases still to be dealt with in a joint statement.
They said 65 indictments were before the criminal courts, comprising 61 from 2021 to 2025, which are still to be tried and four which were due for sentencing.
They added: “Any backlog is not due to the strenuous efforts of the Criminal Division Team to get matters heard as soon as possible.”
Their figures differ from those in a recent public access to information disclosure to justice campaigner Eron Hill, who was told by the Acting Registrar that 73 cases dating from 2021 to 2025 had not yet been tried.
The Royal Gazette has sought clarification from the courts.
The three judges said that, in their view, only 15 of the 65 ongoing indictments — those dating from 2021, 2022 and 2023 — “can be said to comprise a backlog”, as the remainder, from 2024 and this year, were going through the statutory case management process.
They did not mention if there were any cases from before 2021 still to be tried, but Mr Hill said he believed there were.
The executive director of the Bermuda Equal Justice Initiative added that “if Bermuda is serious about addressing the problems plaguing our criminal justice system, we must first be willing to accept that there are problems“.
“So, while we appreciate the court’s understandable hesitation to describe the staggering number of cases yet to be tried as a backlog, BEJI continues to be of the view that having over 50 plus cases to be tried when we only have two dedicated judges and two dedicated courtrooms is indeed a crisis which demands urgent collective action.”
The judges’ statement cited a number of issues impacting how quickly cases can be dealt with by the Supreme Court, including the limited number of criminal defence lawyers.
The three justices noted that “there seems to be a necessary practice now where in complex matters, where there is a single defendant, there is a lead defence counsel and a second chair [who often is as senior as the lead counsel].
“We recognise that the Bermuda Bar Association, along with the judiciary, have acknowledged the shortage in criminal defence lawyers and together we seek to find ways to encourage more lawyers into the criminal division.”
They added: “For 2025, there are already 27 indictments to date, which will likely outpace the numbers from 2024.
“Any backlog is not due to the strenuous efforts of the Criminal Division Team to get matters heard as soon as possible. Many of the issues that exist are beyond the control of the judiciary.”
According to the statement, trial dates have been fixed for two matters from 2021 and two from 2022.
Of the 11 matters from 2023, seven trial dates have been fixed and the remaining four are at various stages of case management,
There are 19 matters from 2024, with six trial dates fixed. None of the 27 matters from this year have trial dates fixed yet.
The judges shared that five matters are pending the outcome of constitutional or judicial review applications before the civil courts.
They include one involving former premier Ewart Brown, whose is awaiting a ruling on his claim against the Deputy Governor, Attorney-General and Director of Public Prosecutions, which alleged that a criminal investigation into him was unlawful because it breached his constitutional and common-law rights.
The judges’ statement detailed the stages of case management for criminal matters, noting that the “setting of the pre-trial applications and the setting of trial dates are contingent upon the availability of prosecution and defence counsel and witnesses for the prosecution and defence [including overseas and expert witnesses] and whether the defendant has legal representation [a few have been denied legal aid].”
They acknowledged the “substantial funding” pledged by the Government for “renovating courtroom and administration space in the Dame Lois Browne-Evans Building”, but said extra space would not be a silver bullet.
“While it would be good to have an additional criminal court, it would not necessarily improve the problems, since there are only so many defence counsel available to do trials. This problem is compounded … where there are multiple defendants in a case.”
The judges said the “vast majority” of criminal defendants were on bail.
“The courts have ensured that all persons, even those charged with the most serious of crimes, exercise their right to bail,” he added.
Mr Hill pointed out that a lack of criminal defence lawyers had been cited as a reason for cases being delayed and backlogged 20 years ago by former chief justice Richard Ground.
“The lack of local defence counsel is not a challenge that will resolve itself overnight,” he said.
“BEJI is proposing an immediate and meaningful response to a longstanding systemic breakdown.
“We propose inviting a limited number of internationally recognised King’s Counsel to come to Bermuda to represent defendants as they simultaneously mentor the next generation of young Bermudian criminal practitioners.”
Kehinde George, president of the Bermuda Bar Association, said: “I don’t have anything to add to the CJ’s comments.”
• To read the judges’ statement and BEJI’s response in full, see Related Media.
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