Supreme Court under pressure
Defendants waited nearly twice as long to have their cases heard in the Supreme Court last year compared with 2018.
Puisne Judge Charles-Etta Simmons said in the annual report of the judiciary, a lack of court space and trial judges had caused the wait between arraignment and trial to increase from 3½ months in 2018 to 6½ months last year.
The number of new indictments fell from 42 in 2018 to 36 in 2019, a decrease of 12.5 per cent, but the number of cases carried over into last year went up.
A quarter of new 2018 cases were transferred to 2019 and 30.5 per cent of new cases were carried over from 2019 into this year.
Mrs Justice Simmons warned the backlog would continue to grow unless steps were taken this year to tackle problems caused by the closure of Supreme Court 1 and the Criminal Registry because of construction and air quality concerns.
She said: “No provision was made by the Government in the reporting year to house the Criminal Registry and staff.
“No premises have been provided for a second criminal trial court.
“Without adequate provision of alternative space to accommodate a trial court and attendant spaces, a backlog of cases, especially those that are ready for trial, is expected to be incurred during the next reporting year.”
Mrs Justice Simmons said there was no available space in the Dame Lois Browne Evans Building on Hamilton's Court Street for additional criminal courtrooms, but internal changes could make space available.
She explained: “With some internal renovation, space currently occupied by unrelated government ministries or departments could accommodate the judiciary's physical plant requirements should those spaces be freed up and dedicated to the judiciary.
“The DLBE building would then be seen as Bermuda's hall of justice.”
Mrs Justice Simmons added that some cases had been delayed because they had come to the Supreme Court without proper disclosure to defence counsel, which is required by law.
She said: “As supervising judge I have been at pains to point out to prosecuting counsel that such cases should not be sent up without the attendant disclosure, especially since there is provision for the case to be sent up from the Magistrates' Court at a later date once the disclosure has been served on the defence.
“It should be pointed out that the defence must agree to the sending up on a later date.”
Mrs Justice Simmons added: “The problem is compounded when the prosecution do not serve the defence with the minimum disclosure until after multiple appearances in arraignment court.
“This practice has resulted in inefficiency and encouraged defence counsel to question the fairness in the process.
“We will continue to press the prosecution to make timely service of the minimum disclosure required by law.”
Mrs Justice Simmons also highlighted that amendments to the Legal Aid Act could cause more delays in Supreme Court proceedings.
The amendments required senior legal aid counsel to assign defence lawyers to those who are approved for assistance.
She said: “There were 32 new cases brought before the Supreme Court for arraignment between March and December of 2019. Of those, 18 assisted persons; 56 per cent were represented by legal aid counsel.
“All, but one defendant, were, in fact represented by the senior legal aid counsel; during the reporting year there were only two legal aid defence counsel.”
Mrs Justice Simmons added: “It is clear beyond peradventure that if 56 per cent of defendants in new cases are all represented by one, or for that matter two counsel only, that delay in proceeding to trial in those cases is more likely than would be the case if some, if not most, of those defendants were represented by counsel from outside of the Legal Aid Department.
“This recent development bears careful scrutiny.”