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Chief Justice calls for law reform debate

Controversial decisions by judges to clear defendants should be open to appeal, according to Chief Justice Richard Ground.

He would also like a "creative discussion" about other "time-hallowed" legal rules and practices, with a view to scrapping them.

That could mean jurors are told about a defendant's previous convictions in future, if he is a bad character. And witnesses could be spared the ordeal of preliminary inquiries in the Magistrates' Court, where they can be grilled by lawyers before the case even goes to trial at Supreme Court.

Bermuda's top judge outlined his views in an interview with The Royal Gazette after widespread public criticism of the Island's justice system in recent months.

Two high-profile cases in particular the murder of teenager Kellon Hill and road death of barman Larry Thomas controversially ended with acquittals before they went to the jury.

While he said it would be inappropriate for him to discuss specific cases, he said in general terms: "Speaking personally, and not on behalf of all the judges, I believe that if you require a judge to make a decision like whether to acquit somebody at half time, you should also provide for an appeal from that decision.

"It's wrong in principle, and unfair to the judge, to require them to take decisions like that without there being an appeal, for two reasons really. If they get it wrong, it should be capable of correction, and if they get it right, they should be capable of vindication."

Despite recent controversies, he said: "I think the system, as it's working at the moment, the citizens of Bermuda should have confidence in it. I think it's working by and large well. I'm not saying that complacently or shutting my eyes to difficulties and problems but I think on the whole the system is working well and on the whole gets the right result."

However, he believes there should be discussion about reforms implemented in England over the past ten years, and whether they should be adopted in Bermuda.

"The criminal justice system has various practices and ideas which are time-hallowed and everybody takes for granted without really looking at them critically. And I would like to see a critical evaluation of some of those," he explained.

One thing he would like to see abolished are long-form preliminary inquiries, which are held in Magistrates' Court in some serious cases.

The Magistrate ultimately decides if there is a strong enough prosecution case for it to be sent to the Supreme Court for a trial. Such preliminary inquiries can involve calling witnesses to give evidence, and they are sometimes grilled by defence lawyers as part of that process.

"They take up the time of the Magistrate and the prosecutor and everybody else," said the Chief Justice. "In some cases they can be done for technical reasons, and in other cases they can be done by the defence to have a dry run of, for instance, cross-examination of a prosecution witness.

"There are many reasons why they might be done. I have to say none of those reasons are very good ones. There's no reason why the defence should have a dry run on cross examination.

"And were it the case that they were being done in the hope of dissuading witnesses from actually coming forward and giving evidence, that would be a bad thing. I'm not saying it is done for that reason.

"And even if they're being done with the best will in the world, there are categories of witnesses for whom the experience of giving evidence twice would be a real deterrent, and that's particularly children, victims of sexual assault and victims of abuse who will find giving evidence only once very stressful."

Instead, he would like to see cases automatically committed to the Supreme Court, based on the papers. The defence could still apply to the judge to throw them out before trial if they successfully argue there's not enough evidence.

Another area he would like to see addressed is disclosure where prosecutors are obligated to tell the defence about materials that could be relevant to the defence case. It's something that sparks lengthy arguments in Bermuda's courts.

"We just need a regime to regularise that," he said. "But more importantly, and I suspect more controversially, we should be looking at whether the defence should not be giving disclosure. I mean why should they be able to sit there and demand everything from the prosecution and say nothing themselves?"

In England, the defence are obliged to provide statements outlining what their defence is going to be.

The Chief Justice would also like an end to lengthy legal arguments sparked by objections to "hearsay" evidence, and about whether jurors should hear about a defendant's criminal past.

"We take jurors out of their safe little lives, we make them come to court they don't want to do it and we make them sit there during the trial, and then there are great chunks of stuff we don't tell them about, like the defendant's previous convictions," he said.

"If good character's something the jury should know about then there is at least an argument that it cuts both ways. Again, that would be very controversial but I think it's something we could have a useful discussion about. In England they now permit it subject to the judge's discretion and the judge has to direct the jury as to how they can use it."

Hearsay is a prohibition on the use of out-of-court statements in evidence. It often means witnesses are stopped from telling the jury about something someone else told them. In England, the judge can admit hearsay if it's in the interests of justice.

"Hearsay is a nightmare, and is the cause of most evidential objections during the course of a trial," said the Chief Justice. "It also causes witnesses the most difficulty, as they are repeatedly stopped from saying what someone else said, and that can confuse them or throw them off."

He feels sharing more information with jurors would boost their confidence in the trial process.

"We should trust them. Otherwise the process becomes so artificial. And jurors get distrustful. You can see it in their eyes when they come back after they've been out for two days while you argue about something. And they know things are going on and they're being kept from them, and that's just not good for the health of the process," he said.

"In effect we owe it to jurors. We ask a lot of them both in terms of their time and the decisions they have to make, the difficult decisions, and we need to recognise that more by not treating them like children."

Photo by Glenn TuckerChief Justice Richard Ground.