If justice delayed is justice denied, where does that leave Gibraltar?
|by Leo Olivero
The recent Supreme Court case of three local businessmen charged with fraud who walked free from court, this after Justice Barrington Black very early into the trial instructed the jury to find all three men not guilty of all charges; this raised more than a few critical eyebrows.
The charges in the case date back to 2008, a 4 year period in which these men have had to wait before the trial commenced only to have it abruptly ended by the judge very early into the proceedings after hearing one of the early witnesses.
Luckily in Gibraltar we do not hear of such cases as often as in many other places with a similar legal system, but it does happen and when we do it paints quite a negative picture of the Criminal Justice System (CJS). However it has to be said, that when these things happen in any court, people tend to lose faith that the law that governs society is not dishing out an effective, fair and democratic form of justice that people can draw confidence in!
But it’s good to remember that the legal profession is a noble mission which, if exercised in the right manner, is capable of protecting individual freedoms, guaranteeing the rights of the citizens and promoting social peace and order, and that is so important.
Court Cases Become Protracted and Take Years to be Heard!
On the whole, officers of the court deserve our respect and gratitude. There is no doubting that the majority of the personnel that have been members of our judiciary, owing to their competence and sense of justice, have left a lasting impression on development and operation of our justice system.
Yet, nowadays we sometimes hear complaints relating to the administration of justice: about legal cases ‘becoming needlessly protracted for months and even years on end’ like the one mentioned above; about sentences being deferred and especially about the costs involved in the legal process. It is all too easy to lay the blame squarely at the door of the individual legal professionals, but in most cases our system of justice as a whole is often at fault. In fact, some even say it is in need of improvement.
It is not easy for the man in the street to understand and appreciate the responsibilities and delicate task faced by members of the bench and legal counsel. Too few of us are aware that legal professionals have a detailed code of ethics and that the majority of them - with a few exceptions - do their level best to abide by it.
When the lawyer appears in court, he is obliged to assist the court in making the juridical process work and, yet, at the same time, ensure that his client obtains the best possible result from the process. This dual nature of the profession does not make things easy because a conflict can arise between the duty towards the system of justice as a whole and the obligations towards a client. Lawyers who are either reckless in their approach or seek to win at all costs violate their ethical duties and strenuous efforts should be made to stamp out forms of malpractice, such as fabrications, deceit, dirty tricks and lack of discipline.
If the lawyer is the person who gets the process of justice started, the judge is the one who will determine its direction and destination. One famous US Supreme Court judge, Benjamin Cardoso, once said: “In the long run, there is no guarantee of justice, except the personality of the judge”.
Justice Must be Seen to be Done!!
It should not be forgotten that judges and magistrates, too, are subject to a code of professional ethics. They are independent, but within a framework of a number of checks and restraints such as precedent, appeals, the legislature, and, not least, public opinion and the press.
However, above all, they must be loyal to the law of the land and at all times strive to make the right interpretation and decisions by making sound use of their own conscience, an example of that was in the case in question I mentioned. But judges frequently put a halt to trials in their court room when proceedings by way of evidence or any other judicial eventualities are prejudicial to the rights of the defendant; this is what happened the other week in the case I described at the beginning of this article.
The function of a judge, in its simplest and most evident form, is the use of his judgment within the framework of the law as a case unfolds and is ultimately concluded. Some maxims are there to assist: for example, a well known one is ‘justice should not only be done, but also seen to be done’ or justice delayed is justice denied; and so on and so forth. The guiding light should always be justice.
There is a widespread assumption that a judge will be neutral and not venal. Indeed, there is an obligation to be so. Besides observing the points of procedure, he has to ensure that facts are brought out fully, and in as short a time as possible, so that the jury, and himself, can make an informed and just decision upon them.
Administration of Justice in Small Community!
One point worth mentioning and an issue that has always been present, as this happens in most small communities like ours and where the defendant, witness or victim and even certain members of the Jury are more often than not known to each other. It does put another dimension in administering local justice and sometimes in a negative way.
But justice in my experience has always prevailed in Gibraltar, not always with the desired result that I would have liked, particularly during my policing days. But the administration of justice takes many forms, and does not always revolve around the defendant being found guilty or not guilty; there are many other elements to the justice system just as important to the eventual outcome.
Take witnesses for instance, who are often a crucial part of evidence, and each one takes an oath before the court. But can the sincerity of witnesses be always taken for granted? Probably not, since there is often a feeling that some people called to testify at trials take oaths very lightly. Taking an oath is a solemn undertaking; it is to invoke God as witness to what one affirms as a pledge of one’s own truthfulness. Obviously for atheists, who deny God’s existence, oaths do not have any meaning; but everybody who takes an oath should do so to support true statements.
At the end of the process the judge must direct a jury, accordingly, without bias or favour, and then impose a sentence that is justifiable in the eyes of right-thinking human beings. He also has a duty to explain his decision.
The Importance of the Judicial System!
No one can deny or minimise the importance of the judicial system in modern society on a national or international level.
Laws and the administration of justice have a profound impact on the life of our nation. But if ethical norms are being disregarded, the legal profession will end up losing all the spiritual and moral force that underpins it.
Fortunately, for us, the Bench and the Bar in Gibraltar are not without honest men, who dare to speak and to act in the spirit and accent of Christian Morality. But can we be certain that that applies to each and every member, I hope so!
Although one issue does concern many, even those in the learned profession, in fact this has been a problem even during my days as a police officer and I retired nearly 9 years ago, this is the delay in getting cases to court and definitively dispensed with.
There is a clause in the Magna Carta (clause 40 for the very curious) that states with a flatness that is almost brutal in its directness: “To no man will we sell, or deny, or delay, right or justice”. Self-evident don’t you think?
Remember - that charter was signed nearly 800 years ago, in 1215, yet, here in Gibraltar, the delay bit - still remains a concern within our justice system!