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State of the Island’s courts put the judicial process at risk Kawaley

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Chief Justice Ian Kawaley has expressed concern over Bermuda’s “disgracefully inadequate” court facilities.

He also highlighted the rocketing costs of the legal aid system, and called for criminal procedures to be modernised.

In a speech at a special setting of the Supreme Court yesterday, which marked the beginning of the legal year, Mr Justice Kawaley said: “The physical accommodations for criminal jury trials in Bermuda are disgracefully inadequate.

“The safety of court staff is compromised in many cases by the lack of modern, secure court architecture. The integrity of the trial process is constantly at risk because of inadequate segregation of jurors and witnesses.

“The Magistrates’ Court is housed in a purpose built building which they are sharing with Departments wholly unconnected with the judiciary; meanwhile the Supreme Court and Court of Appeal are spread over three different locations.

“These conditions undermine the independence and impartiality of the courts.”

He also noted: “Bermuda’s legal aid system is indispensable to ensuring that accused persons are able to enjoy their constitutionally protected fair hearing rights.

“The financial cost of this system threatens its long-term existence.

“Some of these costs can be curtailed if the criminal trial process is modernised to reduce the length of criminal trials where this can be justly achieved.”

The Chief Justice has written new rules for the Island’s courts since he took over the top job in April.

He said: “With the support of the new Parliament, it is hoped that new Criminal Procedure Rules will be brought into force in the first quarter of this year.

“This represents a first step towards empowering the Court to manage cases with a view to increased efficiency without diluting fairness.

“Primary legislation is, however, required to empower the courts to make costs orders against parties who flout court directions, to compel the prosecution to give adequate disclosure, to require the defence to give disclosure and to abolish preliminary inquiries.

“There is also a need for legislation permitting overseas witnesses to give evidence remotely by video link which could also substantially reduce the costs of criminal trials to the public purse.

“Similar steps have been taken in other Commonwealth jurisdictions with apparently beneficial results.”

The Chief Justice went on to call for measures to help people access justice in civil cases.

“The cost of civil justice is a major threat to the ability of ordinary litigants to enjoy the right of access to the court which is an element of the right to a fair hearing in civil cases. The scope of civil legal aid has been cut,” he said.

“Almost 20 years ago an English version of the much maligned US contingency fee system was introduced in England and Wales and given the moniker ‘conditional fees’.

“Backed by insurance, it permits lawyers in certain categories of cases to receive result-based fees avoiding the need for the client to pay up front legal costs.

“A Bermudian equivalent of conditional fees is desperately needed to allow the costs of publicly funded litigation to be reduced without depriving deserving litigants of access to justice.”

The special sitting also heard speeches from Attorney General Mark Pettingill, Director of Public Prosecutions Rory Field, Senior Magistrate Archibald Warner and President of the Bar Association.

For coverage of their speeches, and of a report on the judiciary also issued yesterday, see Monday’s edition of

The Royal Gazette.

Chief Justice Ian
Special court session: report on judiciary - Chief Justice Ian Kawaley (Photo by Mark Tatem)
Special court session: report on judiciary - Senior Magistrate Archibald Warner (Photo by Mark Tatem)
Special court session: report on judiciary - President of the Bar Council Delroy Duncan (Photo by Mark Tatem)
Special court session: report on judiciary - Attourney General - Mark Pettingill (Photo by Mark Tatem)

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Published January 19, 2013 at 8:00 am (Updated January 18, 2013 at 11:24 pm)

State of the Island’s courts put the judicial process at risk Kawaley

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