OAG’s report on court ‘deficient’, says CJ
(CNS): The country’s top judge has hit back at the Office of the Auditor General following criticisms made in a review report of judicial administration published last week. Chief Justice Anthony Smellie, who retires this month after decades on the bench and managing the local court system, has said the original OAG report published in 2019 was “deficient in several fundamental respects” and none of the concerns about the flaws raised by the court management were ever acknowledged.
In a lengthy statement defending court staff and explaining the challenges the administration faces, CJ Smellie rejected the criticisms and accused the OAG of relying “on the erroneous assumption that the efficiency and effectiveness of the Judicial Administration, as a whole, can be measured against allegations of excessive costs of progressing cases through the Summary Courts”.
He said several of the audit recommendations were “based upon no true understanding of how the justice system works”.
In the report, Auditor General Sue Winspear and her team criticised the court management for not implementing any of the recommendations that were made by the Public Accounts Committee in their report, which was based on her April 2019 audit, and for not completing an outline business case for what the chief justice has said for years is a much needed fit-for-purpose courthouse.
However, CJ Smellie said that the business case was in progress but had been suspended due to the pandemic. Work on this has now resumed, he said, noting that there was never any risk that one would not have been completed.
The senior judge pointed out that the original completed PAC report, which was supposed to be focused on the problem of a courthouse, was published just a few months before the pandemic struck.
“The year of the original Report, 2019, marked the onset of the pandemic that resulted in disruptions and dislocations, the likes of which the world has not seen in generations,” he wrote.
But despite COVID disruptions and an increase in court matters, from family issues to financial service cases, the court staff managed to work around the pandemic and prevent the build-up of a backlog.
He said an independent assessment by external consultants in March 2022 revealed no significant backlogs in any of the criminal divisions. The CJ said the consultants were engaged before the OAG’s Report “to examine and advise on our administration of the courts”, focusing on the Criminal Divisions. The first visit was in 2019 before the national pandemic shutdown.
He pointed out that in the audit, the auditor general had said the current court buildings were not fit for purpose. However, he said she did not accept that this was having a direct impact on the Judicial Administration’s ability to function and implement the recommendations made in the audit. He said the report did not discuss the real reason why a workforce plan could not yet be developed and deployed.
He said that the “chronic lack of accommodations for staff and the constant adjustments that must be made to alleviate its impact” were not mentioned even though this is a critical part of the challenge faced by the judiciary. “The impact of this constant state of flux has been substantial at all levels, yet the judiciary and support staff continue to deliver justice, an incredibly sensitive and testing objective in itself, while coping with these challenges.”
The CJ said the report was prompted by a request by the Public Accounts Committee for an audit on whether a new court building, which had been promised by successive governments for more than two decades, was really needed.
“Ironically, the OAG had, perhaps unwittingly, answered that remit in its own assessment” that “the existing court buildings are not fit for purpose. Regrettably, but hopefully not irretrievably, the result is that public attention is now being diverted away from the underlying obvious need for modern court facilities,” he added.
He said Judicial Administration had made a clear response in 2021 to the OAG that “a proper business case must and will be presented to government before any decision could possibly be taken to invest in a new building”.
He explained that in the interim, the acquisition of the former Scotia Bank building had relieved to a degree, in the short- to medium-term, the chronic need for space that has hampered the operations of the courts for decades. It brings the total available courtrooms to nine, all of varying sizes and specifications. Only four of the nine will be available or suitable for the hearing of the more serious criminal cases, one of which must be available for the Court of Appeal.
Four of the nine courtrooms are in Kirk House, which is held on lease, and the trial of risk-sensitive criminal cases cannot take place in that building, so there are many occasions when cases need to be postponed for want of a suitable courtroom, he said, as he once again made the case for a new courthouse.
“I fear that in the continuing absence of adequate modern court facilities, the Administration will become the victim of its own success, the result of a false perception that such facilities are not really needed” because they have been getting by without when they are, in fact, increasingly desperate.
“A much more nuanced and balanced OAG response, based upon a more rigorous assessment process than soliciting annual responses to the flawed original Report, would contribute much to avoiding that ill-advised outcome,” the chief justice added.
See CJ Smellie’s full response below:
- Fascinated
- Happy
- Sad
- Angry
- Bored
- Afraid
It’s about time that administration is scrutinized and looked into. A Court Administrator with lofty ambition and no experience except to remove obstacles that prevent her from running things on her command regardless of the laws. No one watching the budget or staff while the aged CJ only surrounds himself with those who agrees with him. If someone doesn’t have a good look at the system it will be too late when the judiciary and administration loses its independence because no one can trust them. Bunch of power hungry serpents with no regard or respect for the public purse or the people. A proper audit is needed for the sake of Cayman, but does anyone listen….
Sure you’re not talking about the Port authority..?
Certainly sounds familiar.
Sadness: hmmm I am trying to respond in an empathetic a way as possible by responding to the facts you presented only: the office of Chief Justice is so hard pressed for time that one would have little time to selectively “surround [oneself] with people who agree”.
To get the job done, It means long hours spent in a constant round of hearings, writing of judgments, meeting with statutory bodies and committees comprising appointees to the court and in government as prescribed by law, internal meetings, and other official duties. etc.
Our Chief Justice also sits on the Bermuda Court of Appeal, for which he also has to write judgments.
Together this busy schedule leaves hardly enough time to breathe much less the style of operation you suggest.
BS
I have now read the CJ statement you provided and I must say CNS you presented the points the CJ made very clearly and well.
I also think the CJ made a fair and cogent response to the OAG.
Being a Chief Justice must be one of the most demanding —and stressful—job. He is clearly to be admired for the job he did for just short of 25 years! That is what you call stamina, heart, and commitment.
Best wishes to him as he moves on to continued fulfillment in his retirement.
The CJ was quite accomplished as a jurist but not as an administrator. Judicial independence has been abused as a curtain to keep out objective professional assessment.
It hasn’t helped that he has been saddled with an administrator that had no administration experience or demonstrated skills.
His judgements will be missed but not his management.
9.19am Have you read some of his judgements?
4:30 pm: have you read enough to be a representative sample?
CJ has a terrible record on judicial review and is far from timely in process.
The bar for what is considered good seems to be extremely low…
9:19 am: obviously “judicial independence” did not keep the OAG from making its assessment. You misunderstand what judicial independence means. It means that the judgments of the courts are protected from interference so that the public may have fair and and proper judgments. It does not prevent reviews of non judicial operations of the court such as cost effectiveness and other efficiencies, which should be all to the good as long as the assessors are competent in the specialized sphere.
a public servant not taking accountability ? unheard of
Shaggy syndrome is rife throughout.
Why has it taken three years to comment on the 2019 report.
Tempos Fugit
TempUs.
Exactly! The CJ is only concerned about his legacy. The Auditor General is about the only one I would trust to make objective comment about Government and its administration.
His legacy is his close working relationship with his successor.
The Auditor General is right. In fact, Smellie has championed the idea that the judiciary must, for all practical purposes, be unaccountable. He euphemistically calls it judicial independence. That is why, over the years, we do not know how many lawyers he has disciplined or how many judges he has disciplined. This is while Caymanians are always being shafted and the politicians sheepishly say they support the judiciary. The judiciary treats Caymanians as second-class citizens.
Ever made a complaint about a lawyer? Try it. Nothing ever comes of it.
Can the CJ (or anyone for that matter) name one territory or country where one of the indigenous or multi generational citizens can go through the entire justice system (arrest to sentencing) and throughout that often long process, and have a high probability they will only face people who are originally from another country?
For every thumbs down, hopefully we get a name.
Caymanians been asleep at the wheel and trust me when I say …… we are no longer in charge.
It sounds like we require a Court building of similar size to the Govt Admin Building, perhaps the old GAB which has been sitting empty and forgotten for years could be adapted or alternatively demolished and rebuilt. But it seems the wheels of justice and Government grind slowly, albeit slowed by the Covid crisis. As far as I can recollect from reading reports in the Compass a number of criminal cases have taken a long time to be completed.
Kurt Tibbetts said long long time before Covid that the Glass House would be demolished “soon”.
Yeah, but the bodies are in the basement.
Waste of money in these financially troubled times.
Providing a gilded palace for the overpaid, to deal with the great unwashed , is not the best use of public funds.
This comment is senseless! The building at Kirk house is not fit for purpose and taking into account the huge revenues that the FSD of the Grand Court generates, it need to have proper facilities – have you seen the lift?
Looking to the bighter future with big changes and much needed improvements with the new CJ.
The new CJ shares with the old one a distaste for the Judiciary to be scrutinized and held accountable.
Jamaicans run tings.
I agree with the Hon. Chief Justice Smellie KC (now Sir Anthony) that, as pertains to providing (inter alia) adequate funds for a new courthouse, this is an area that cannot be ignored and proper funds should be provided for same.
Pursuant to section 107 of our Constitution, which is headed “Judicial administration”, reads:
“The Legislature and the Cabinet shall uphold the rule of law and judicial independence, and shall ensure that adequate funds are provided to support the judicial administration in the Cayman Islands.”
In addition to the “Legislature and the Cabinet” upholding “the rule of law and judicial independence”, there are is also a constitutional obligation that they “shall ensure that adequate funds are provided to support the judicial administration in the Cayman Islands”.
The judicial arm of government has (in my humble opinion) consistently outperformed both the legislative (the Legislature or Parliament) and executive (the Cabinet) arms of government and, if the judicial arm of government requires more funds to ensure that adequate funds are being provided by the Legislature and the Cabinet to support judicial administration in the Cayman Islands, then such funds and resources must be provided.
Outperforming those branches is a very low bar.
The court has serious administrative issues and is not well run. These issues existed before, during and likely after the pandemic ends.
Using Covid as an excuse doesn’t cut it.
Need stiffer laws in place against criminals, like in Singapore. So it will be less criminals and less court cases.
Could someone please investigate allegations as to the widespread unlawful conduct of Cayman Law with the participation of illustrious officers of the court, and of their breaches of the immigration law?
Or are they above the law?
A Cayman Islands Attorney-at-Law is an Officer of the Court. The argument made is that the lawyers practicing overseas are not admitted to practice law in Cayman and accordingly are not Officers of the Court.
But many of those directing them and taking the proceeds, are.
Could someone please investigate the widespread inability to write clear English, particularly by lawyers who should know better?
“Participation of illustrious officers of the court”, forsooth!