Important first step in justice reform agenda, but ...
Published: Sunday | March 22, 2009
Llewellyn
The following article was submitted by the civic action group, Jamaicans for Justice.
The Senate's passing of a Bill to amend the Coroner's Act in December 2008, and Director of Public Prosecutions Paula Llewellyn's recent statement that she was going to clean up the backlog of cases involving police killings, are welcomed steps in the justice reform agenda and tackling crime.
Strengthening the functioning of the coroner's courts and providing for the swifter delivery of justice are essential components in the effort to end corruption in the police force, the practice of extrajudicial police killings and to reinstating trust in the police. Improving the justice system will reduce the costs of these delays - society's productivity and emotional costs and the monetary costs to taxpayers who have been paying for a slow, ineffective delivery of justice.
Expeditious resolution
The Government, as "an important part of the justice reform program", brought the bill to Parliament. It seeks to "reduce the delays in the system in relation to the holding of inquests under the Coroners Act", and speaks to "the need for more expeditious resolution of cases where persons die as a result of actions taken by certain agents of the State". The amendment to the Coroner's Act provides for the "establishment of an Office of the Special Coroner to exercise jurisdiction as coroner in relation to such deaths" and recognises "the need to increase the transparency and accountability of the State and its agents".
The need to appoint more coroners has been evident for a long time and is key to the justice reform agenda. Added to the complete inadequacy of the old Coroner's Court, there has been a steady increase in the number of cases involving deaths resulting from actions of police and security forces referred to the coroner's courts islandwide. The archaic system's inability to deal with these cases has resulted in a massive backlog - in 2007 an estimated 4,000 cases were waiting to be heard in the coroner's courts.
There have been more than 800 deaths resulting from police shootings since 2004; this trend has seriously undermined confidence in the police force, their effectiveness and the legitimacy of the rule of law in Jamaica. These statistics have also brought unwelcomed international scrutiny from international human rights bodies, such as the Inter-American Commission for Human Rights.
Jamaicans for Justice (JFJ) has had extensive experience with the functioning of the coroners courts islandwide over the organisation's ten-year existence. The amended bill's central objective is to reduce delays in holding inquests under the Coroners Act. Establishing the Office of the Special Coroner is a step in the right direction, but where persons die as a result of actions taken by agents of the State, a number of lingering weaknesses remain that, if left unchecked, stand to reduce the power and effectiveness of the special coroner.
Shortage of resources
Delays to inquests are frequently caused by delays in the completion of forensic and ballistic investigations, tests and reports; a shortage of ballistics experts, forensic pathologists (there are at present only four government forensic pathologists) and forensic analysts, whose results are critical to the investigation of cases of unexplained, suspicious or violent death.
The Coroner's Act stipulates that after being informed of a death by the coroner, the medical practitioner is to perform the post-mortem immediately and produce the report to the coroner within 48 hours. Normally, these directions come from the police and post-mortem rarely occur within the relevant time frame. A marked exception to this was the celebrated case of the post-mortem on Pakistan's cricket coach Bob Woolmer, which took place two days after his death. Post-mortems normally occur several weeks to more than one month after a death. The coroner, not the police, should be required to give this directive to the medical practitioners.
Despite the current Coroner's Act mandating the 'designated officer' to provide a report to the coroner within 21 days, the investigating officer usually forwards the report to the DPP's office rather than to the coroner. This detour is a breach of the act, and results in significant delays, as the DPP usually takes anywhere from six months to two years to rule on some matters.
This departure from procedure is unacceptable and should be eliminated. It provides a simple demonstration of how the justice system can be improved, ironically, by stricter adherence to existing procedural rules. JFJ strongly recommends making the following amendments to improve the smooth working the new act:
Material evidence
The coroner has power to summon witnesses and secure the attendance of witnesses who have material evidence to give. In practice, it is generally left up to the investigating officer who took statements to swear to this material fact either in open court or on affidavit; if the officer is unavailable, however, the witness pool is compromised. JFJ believes that the coroner should have the power to summon all relevant witnesses based, among other things, on statements and exhibits and any other documents in his possession.
Frequently, witnesses are called to court several times before matters even begin. If a witness appears at the first sitting of the case, but fails to attend subsequent sittings, having been bound over, the coroner must have the power to issue a warrant to compel attendance.
Professional jurors
The current act states that coroner's juries be selected indiscriminately from the jury list. However, some coroners continue the practice of using repeat jurors or 'professional' jurors. In some cases, these jurors have even been found to be 'interested parties', having a relationship with individuals involved in the case.
It is also difficult to guarantee the attendance of jurors at inquests because the fine of $4,000 for not appearing is not a deterrent. This fine should be significantly increased. Additionally, the newly passed amendment to the Jury Act, which expands the jury pool by using the TRN registry as the 'list', is a welcomed development, and if adhered to should obviate the use of professional jurors.
Additional problems
'No Jury Returns' is another common problem, due in part to witness and juror subpoenas being channelled through the same detention and courts office that serves summonses to other courts in the Corporate Area. In other parishes, subpoenas are sent to the relevant police station, posing additional problems when matters involve allegations against agents of the State. Often, little effort is made by police officers to summon jurors and witnesses that may lead to the charge of a fellow officer. The current Coroner's Act provides for the appointment of a Special Bailiff should the process server fail to serve witnesses within 14 days. However, the coroner is required to select the special bailiff in consultation with the chief justice. This process has proven to impede the testimonies of crucial civilian witnesses. JFJ has recommended making a few practical changes, including:
The need for greater sensitivity towards the needs of the bereaved and to provide a high standard of service in extremely difficult circumstances is vital. A family member's ability to examine witnesses at an inquest should be an entitlement, not a privilege afforded at the discretion of the coroner.
Examine witnesses
JFJ also suggests other changes to the Coroner's Act, including: amendments to entitle interested parties to have observers at post-mortem and for the coroner to allow such observers, once available, to give evidence and to compel coroners to inform all interested parties (including families of the deceased and persons who may potentially be implicated, such as police officers) of the right to examine witnesses in person or through an attorney-at-law before an inquest begins.
While JFJ applauds the passage of this new act, it urges the Government to implement further changes to the entire coroner's courts system, to ensure that they can succeed in fulfilling the mission statement of reforming the justice system and the 'timely delivery of justice for all'.