CARIBBEAN EXAMINATIONS COUNCIL

CARIBBEAN ADVANCED PROFICIENCY EXAMINATIONS (CAPE)

PUBLIC LAW

UNIT 1 MODULE 1 Students Notes for

Caribbean Legal Systems

CONTENTS _____________________________________________________________ ______________ PAGE General Principles 1. Law (i) (ii) 2. concepts, nature, origin, role and functions; 6 relationship with morals, religion and ethics; 9

Concepts of the phrase ‘sources of law’: (i) focus on the legal sources of law, that is the 13 Constitution – primary and subsidiary – and interpretation thereon by the Courts ;

(ii) common law and equity – origin and development in the Caribbean; 37 (iii) precedent. 43 3. Classification of Law:

(i) (ii) 59

reasons for classification; 58 classification bases: (a) subject matter – for example, Contract, functional – for example, substantive and conceptual – for example, private law and

Criminal, Tort; (b) procedural; (c) public law. 4. Courts: (i) Criminal and Civil Courts – structure and hierarchy; 61 the Judicial Committee of the Privy Council (Caribbean Court of Justice), Courts of Appeal, High Courts and Supreme Courts, Magistrates’ Courts – including Juvenile Court, Family Court and Petty Sessions (ii) personnel, jury, jurisdiction and procedure; 70

(iii) industrial courts and tribunals, 73 specifically those created by Constitution or Statute; (iv) Alternative Dispute Resolution (ADR), 76

for example, arbitration, conciliation and mediation (emphasis should be placed mediation).

on

5. The legal profession: training, discipline and role of lawyers. 78 6. Legal Aid. 101 The Ombudsman – role and functions. 102 Law reform and Law revision. 104

7.

8.

Information was culled from Rose-Marie Belle Antoine’s outstanding work Commonwealth Caribbean Law and Legal Systems. students are urged not to ignore them. It was in no way intended to subject any of the sources used to derogatory treatment.PREFACE _____________________________________________________________ ______________ The following was compiled because students undertaking the CAPE Law Unit One Examination are in desperate need of a textbook. The compiler does not consider the following to be an original work. DLS (September 2006) . Professor Albert Fiadjoe’s Commonwealth Caribbean Public Law and various articles and other works which are acknowledged in the footnotes. The compiler tailored this compilation to the needs of Caribbean Advanced Proficiency Examination level students.

1. “an enforceable body of rules” This statement indicates that some rules are enforceable and some are not. or established by local customs. an institution which is essential to the social nature of man and without which he would be a very different creature. legal institutions and machinery which operate within the particular country or jurisdiction”. pronouncement of rules to guide those rules of conduct put in force by legislative authority or court decisions.A legal system comprises of “the body of legal rules. the legislative behaviour. Law: “There are four popular definitions of Law: 1. 4. 3. 2. what is a rule. and the enforceable body of rules that govern society. For example … definition #4. Let us consider then. . All of these definitions are relevant to an understanding of “Law” and each definition can be used depending on the context in which the word is used.

as posited by the legal philosopher. “no one should use profane language.” Rules may mandate action. and functions. . at page 4. they say something must or must not be done and there may be a penalty for disobedience if the rule becomes law and is therefore made enforceable.” (i) concepts. Concepts of law Concepts of law are essentially the theories of law. These different theories govern different peoples and societies alike. according to Eversley. origin. Religion and Morality”. rather than how they are. role. Concepts of law also extend to different cultural. you may wish to consider the definition of Natural Law. For example. In order for you to understand the different concepts of law. natural law can be seen as true law that emanates from a divine being.Rules are normative. For example. the religion becomes the law. as propounded by the different legal philosophers. It is worthy to note that in Islam. you must first understand the different theories. A good definition of a rule may be the following: “a general norm mandating or guiding conduct or actions in a given type of situation. Thus. Islamic and Judaic Law. nature. This means that rules set a standard of how things ought to be. Natural law and Positive law (a) Natural law In Calvin Eversley’s article on “Law. Lloyd who says that … “natural law is believed to be a rational foundation for moral judgment”. Two of the most popular theories of law are natural and positive law. the law becomes the religion and thus. racial and religious situations. of the Guyana Law Review.

natural law is perceived to be that law which is shaped by a divine being and thus provides the guidelines for proper moral behaviour to be exhibited and practiced by mankind.” According to Eversely. For the purpose of simplification.” Positive law is the law created by the sovereign and which must be obeyed even if and when it is unjust or repressive. Cicero. Also. may be characterised by its rules that seek to create and maintain order in society. natural law is directly connected to. the nature of law is to be found in its normative rulemaking content. “The nature of Law … has long perplexed legal and political philosophers”… the nature or essence of law may be found in the definition of law. “Kelsen [a positivist] best epitomises this view in the formulation of his pure theory of law. or ethical considerations which are inherently apart part of that “right reason in agreement with nature” as formulated by the early natural philosopher. (b) Positive law Within the theory of positive law is the belief that law has nothing to do with morals or religion but is shaped by “certain specifically approved. Nature of law According to Wollheim. moral. or rather shaped by. The nature of law therefore. or accepted procedures for law-making. That is why the law lays down the procedure for . rather it is for the sovereign itself or Parliament to change the unjust law. The law seeks to create and maintain the conduct desired of society. In other words. it is not acceptable for the citizen to reject or refuse to obey an unjust law so long as it remains in force. those religious.According to many natural lawyers.

. Different areas of the country were governed by different systems of law.D. the Africans and the Indentured Servants were displaced as the Europeans began to rule them under their transported legal system that was received into Caribbean territories. Eventually it was decreed that there would be one law common to all of England. the Civil Law Act – Cap 6:01 allows for the reception of the English Common Law in 1917 and the retention of some areas of Roman Dutch Law. Thus. he established a strong central government and began. (b) The Caribbean Perspective . which occurred during the 11th century A. hence the name ‘common law’. among other things. then the slaves and eventually upon the indentured servants. in Guyana. Origin of law (a) The English Perspective Before the Norman Conquest. England did not possess a unified legal system. to standardise the law.Reception When the Europeans came to the West Indies they brought with them their laws which they imposed upon the natives. and there was no effective government. Reception in the territories listed below is governed by: Antigua: The Supreme Court of Judicature Act. The King had little control over the country as a whole. For instance. the law of England was fragmented and varied form place to place. the Conqueror gained the English throne in 1066. The laws that were known to the native Indians. often adapted from those of the various invaders who had settled there. When William. Cap 81 .doing things and sometimes attaches a penalty for nonperformance of a particular act.

Role and function of law The role and function of law is to bring cohesion to. The more advanced and complex a society becomes the greater is the need for laws that will regulate human behaviour if peace and stability are to be maintained. then lastly the English. the Spanish. Cap 165. for example. section 31 and 37 Jamaica: The Interpretation Act. Lucia by the French. section 12 Caribbean territories were ruled at different periods in the region’s history by different European nations. improving it and rendering it more efficient. Guyana and St. Lucia has retained certain aspects of the French Civil Code that is practiced alongside the English common law. administration or government. William. then the English. 1799 Barbados: The Supreme Court of Judicature Act. The romantic or utopian view of the function of law is that it regulates human behaviour to achieve a well-ordered and cohesive society. As a consequence. the Dutch and the English. the true function of the law has often been to regulate the activity of society at large in a manner that produces the effect most desirable for the maintenance of the prosperity and the continued protection of the ruling classes. then the English and St. .The Bahamas: The Declaratory Act. Cap 117. Guyana was ruled by the French and the Dutch. The Conqueror chose to introduce a single system of law into England because he sought to achieve unity and cohesion within the legal system of England. Lucia have inherited a hybrid legal system. and maintain order within societies. the French. Cap 4:01. However. Guyana has certain aspects of Roman Dutch Law that is practiced alongside the English Common law and St. Trinidad was ruled by the Spanish. thereby. section 37 Trinidad and Tobago: the Supreme Court of Judicature Act.

For you to have a complete understanding of this area of your study you should examine the contents of Commonwealth Caribbean Legal Systems. Rose-Marie Belle Antoine. therefore begin with an appraisal of the role and functions of the law and legal systems in instituting and upholding the systems of slavery and colonialism which existed … throughout the region … Law was thus an instrument of social control and public order in plantation society … The slave laws were the most ubiquitous form of public control … Their primary function was to maintain the . We therefore all face the danger of attack from the others and competition for such resources as are available … The realisation that we are not safe in the world alone and can only be safe in a community if there are rules of self restraint.Professor Hart argues: [that] … the main function of the law is simply to allow human beings to survive in a community … Each member of society has. the same physical strength and intelligence. Hart maintains that such rules are the minimum necessary content of law in any society. more or less. It also leads to the idea that observance of the rules must be guaranteed by some kind of penalty directed at the rule breaker. in which she posits: “… mention is hardly ever made of the important immoral function which the law in much of the history of the Commonwealth Caribbean.” She continues: A discussion of the role and functions of law in West Indian society should. (1999) at page 12. leads to the development of such rules. protecting the property and person of others. and both our powers of self-restraint and willingness to help others are limited.

A slave was considered chattel. coffee and cotton. ‘a ton of slaves’. For example.” . and racial subordination of the Negroes. Good law refers to a minimum moral or ethical content of law. for example.slave system by guaranteeing the economic. and ethics. livestock and important agricultural products like sugarcane. Slaves were also referred to with reference to their collective weight. religion. “Cicero. Law Religion Morality and Ethics Before we can consider law’s relationship with morals. social. Thus the 1674 law of Jamaica described slaves as goods and chattel. (ii) relation with morals. Cicero believed that natural law is related to the reflex of human beings to resort to an internal source and process of rationality when a situation demands a resolution. According to natural law theorists ‘law’ is “good law”. Legally. in defining “true law” as “rights reason in agreement with nature” obviously logically allowed for the possibility that positive or human laws might not accord with “true law” because such laws might not be based on “right reason” (or put another way such laws might not be informed by good and sufficient reasons) consistent with the rationale (or moral) order of nature. religion and ethics we have to look more closely at how different schools of Jurisprudence define ‘law’. a slave was barred from owning property and a Jamaican law of 1711 excluded slaves from owning almost anything at all. The history of the Caribbean islands reflects that slave laws ensured the security of the plantocracy by ensuring to the slave master an absolute authority over his slaves.

For example most people can kill a kitten with no effort because we are stronger – but most of us don’t.” What does ‘right reason in agreement with nature’ mean? As far as religion is concerned it seems that natural lawyers especially those who believe in the divine. An appropriate analogy are mathematical axioms which hold good even when misunderstood or undiscovered. Views about the exact nature of natural law have varied over the ages. can both be considered as natural law rights. That is. believe that there is a pre-existing moral order that governs rationality and materiality. The reason is we know that such an act would be morally depraved. The positivist approach The Positivist School of law defines ‘law’ without reference to subjective considerations such as morals. or defied in practical thinking. abused in practice.” Therefore law is shaped by religious. which are apart of ‘the reason that is in accordance with nature’.Natural law is viewed as the foundation of moral judgment. So law is defined with regard to how it was formulated. How do we know if a particular human or positive law is true natural law? For instance in the abortion debate. Because the rules that govern our good conduct are connected with basic truths about human nature. “Natural lawyers accept that natural law principles do not always have the effect that they would like them to have but they argue that the principles remain true even if they are ignored. misunderstood. . moral or ethical considerations. but there has been one constant. ideology. Eversely proposes that the right answer is consistent with the “right reason in agreement with nature”. must lie in proper limitations of one or both of these two great natural law rights. there are some principles which are governed by the nature of the universe and which are discernable by reason. the right to life and the right to privacy or freedom of choice. religion etc.

but in other non-legal areas. Law’s normativity Law’s inherent normativity refers to an alleged conceptual connection between ‘legal duty’ and ‘ought’. This choice in turn is not motivated by moral or non-legal considerations.” Eversley defines law from a natural law perspective because he rejects laws. by conforming to approved and specific law making procedure.” . “… it seems clear that the factor which determines whether one believes that there is a necessary connection between law and morals turns upon how one chooses to define law.That is. In the view of the positivist scholar ‘law’ is law simply “… because a legitimate sovereign or lawmaker posited or put forth these rules in accordance with legally approved lawmaking procedures. which is evil or unjust by reasonable standards of decency. then the edict of the despot or dictator would. it is part of the meaning of what you say that. they do. from this positivist perspective. be on the same footing as positivist laws validly enacted by a lawful sovereign or democratically elected Parliament.” The essence of the positivist approach refers to law that is not informed by what some or even most people consider unreligious. in some sense of ‘ought’ the ‘thing’ ought to be done.” This does not mean that positivists do not think of morality religion and justice. “It is also hereby submitted that these specifically approved or accepted procedure for lawmaking must also include logically prior established rules which identify and legitimise the lawmaker or sovereign. unjust or immoral. It is just that positivists do not think elements such as morality should not define law because then it loses its’ clarity and definiteness. If you say there is a legal duty to do something. If the latter were not the case.

Nonetheless.” This means that any “laws” enacted by an Islamic Government which conflict with Islamic law are considered to be “irreligious” and devoid of legitimacy. Thus there must be something in the nature of law which would compel obedience even if terms might be positively unjust. Legal Positivism admits of no such logical connection. morality and religion formed a coherent whole. as one indivisible whole with religion. either in a causative or imputative sense. being the foundation of them all. Religion is an irrelevant criterion to the positivist lawyer when it comes to defining law. Islamic jurisprudence McCoubrey and White have stated. however described. where it represents a true expression of divine will.“ The point being made here is that the argument that there exists a moral duty to obey law.” Thus.” The relationship of religion to law and morality “There are some who see religion. law and morality. McCoubrey and White opine that: “(t)he moral criteria which are an essential . any parallel with natural law theory breaks down at this point since human laws in the Islamic context are not evaluated or tested by reference to the moral criteria inherent in Islamic law for the purpose of determining their validity and entitlement to obedience. and law and morality on the other hand. on the one hand. is further reinforced by the concession of natural lawyers that even human laws which contravene principles of natural law ought to be obeyed ‘to avoid scandal’. Before then law. On this issue.” It is only since modern times that men have regarded law as man-made and therefore to be judges on human terms. “… the matter of divine origin is fundamental to Islamic jurisprudence. the authority of an Islamic Government to make laws of governance “can only be legitimately be found upon the holy law. there exists no validly logical distinction between religion. To the natural lawyer who believes that divine will is the basis of all good law (natural or positive).

It is universal because it is inherently recognized and accepted by all men everywhere.” A law. Relationship of universal. That God gave us free will or the will to be free seems to me to be a fundamental natural law principle. Implicit in this claim that all mankind is governed by this universal order is the logical inference that religious barriers are transcended by a common allegiance to a certain core of universal norms or moral values. it is clear that the moral principle proclaimed through Moses in the Ten Commandments find expression in various forms in differing legal and religious systems. This principle of free will is therefore both universal and rational. For instance. embrace some notion of respect for human life. all legal systems. morality and differing religions “The question posed here is a common or universal morality which pre-exists all religions? In essence. I know of no man who truly desires not to have the right to be free. irrespective of religious persuasions.part of Islamic Jurisprudence are not used as means of evaluation of positive legal norms. though suppressed for a time.” Free will in relation to law. is not law because it has no legitimate moral authority. eventually bursts forth as people exercise their innate or inalienable right to freely choose how they live and are governed. this mode is inherent in natural law theory which posits the view of a universal moral order governing all mankind. and even in totalitarian systems this free will. because from s strict point of view ‘legislation’ has no authority independent of the shariah in the first place. which contravenes Islamic law. It is rational because no truly rational human being desires not to be free of oppression or even . religion and morality “The genius of the concepts of free will lies in its ability to find expression and continuity in widely varying legal and religious systems. It finds its best expression in the highest ideals in democracy. More over.

(i) Concepts of the phrase ‘sources of law’: focus on the legal sources of law. legislation – primary and subsidiary – and interpretation thereon by the Courts. morality and other non-legal phenomena. the Constitution. law is not just a bloodless category.benevolent governance. the law and legal systems originate from the United Kingdom (UK) and its common law and legal heritage. “the origin of law and legal systems in the Commonwealth Caribbean is not only .” Conclusion “It is clear from the foregoing discussion that.” 2. that is. However. certainly in so far as the natural lawyer is concerned. We loathe the former and suffer the latter as a necessary evil. Introduction to Sources of Law Source of law means the origin or basis of law. but is rather intimately connected to issues of religion. The basis of law in the English Caribbean is the English common law. In the Commonwealth Caribbean.

iii. In England. its historical origin and development”. and historical sources. law reports. or legislation. literary sources. Literary sources of law tell us what the law is. Literary sources of law The term ‘literary sources of law’ describes the location of the law. They do not confer legitimacy on rules of conduct or social arrangements.” In any particular legal system. because they shape and inform the particular legal system more than other sources of law.that which emanated from the UK. books. These include: (a) (b) (c) legal sources. legal treaties. . but also includes law and legal systems actually created within the region. Of all three. ii. iv. legal sources are studied more closely. the source of that country’s law is its’ customs. For example the law of the Commonwealth Caribbean is derived directly from our colonial past. the common law and equity being transplanted to the Caribbean under the doctrine of the reception of law. Historical sources of law “’Historical sources of law’ refers to the causative factors behind a rule of law. The source of our law is the process under colonisation that led to English Statute. there are several types of sources. Examples of this source of law are: i.

But it is becoming more important as a source which gives laws in the region’s . colonial Acts still remain on the statute books – take for instance the vagrancy law.It may be argued. For example. custom.” There is a very strong direct interrelationship between the Commonwealth Caribbean legal sources and our historical sources. In other words legal sources give law its authority. The attitude of the judiciary and legislature.that the historical source of law is particularly important in the Commonwealth Caribbean context. and equity.” The following are legal sources of law in the Commonwealth Caribbean: (a) (b) (c) (d) (e) (f) the constitution. Legal sources* Legal sources of law form the basis of the law’s validity. international law and the laws of regional treaties. In the Commonwealth Caribbean international law was not traditionally a source of law. the character and operation of legal institutions all still reflect the colonial experience.. uniform and compulsory. for our legal sources are intimately linked with the historical experience of colonisation and plantation societies.. “. “The identification of a legal source occurs after the process by which rules of conduct acquire the character of law. the common law and judicial precedent. legislation. becoming objectively definite.

Before the theory of constitutional supremacy. The constitution is also a very important legal source because it adheres to the theory of constitutional supremacy in the region. This is particularly relevant to Labour Law and the Law of Human Rights. including the manner in which the State is organised and the body of fundamental principles according to which the State is governed”. The constitution represents an indigenous source of law. The constitution legitimises law. for all other laws are measured against it – it is the supreme law of the land. The Written Constitution as a Legal Source The importance of the constitution The written constitution is thought to be the most important legal source in the Commonwealth Caribbean. 1. All norms of society stem from the constitution. it must be distinguished from ordinary legislation because of its’ important philosophical orientation and authority.jurisdictions validity and authority. The constitution may be viewed as the parent law. It is the base from which the rule of law originates and derives its authority or validity. The constitution can be defined as a body of law containing the rules which determine the direction of the State. 2. It is therefore a manifestation of the political will of our people. This is also a doctrine characteristic of the UK. It symbolises the region’s break from colonialism. There are two reasons for this. the Commonwealth Caribbean observed the doctrine of Parliamentary sovereignty. AG it was said: . “While in form the constitution is an example of legislation. In Collymore v. another legal source. for the constitutions of the Caribbean were written when we were no longer colonies.

states basic human rights and avenues for redress of violations of such rights and promulgates new remedies. This aside. it should be noted that Britain’s constitution is different.” The following is a list of other functions of the constitution in the Commonwealth Caribbean: 1. not even Parliament can disobey the Constitution with impunity. For example the principle of democracy can be found in the constitutions of democratic countries. “The constitution lays down mandatory procedures for government. But this state of affairs is not without problems. because in Britain. 3. is the foundation for judicial review. Parliament is supreme. The constitution also acts as a yardstick to measure the validity and authority of laws in general. But the most popular and important function of the constitution is its’ role in defining and protecting fundamental human rights. Defines State territory. because it tells us (citizens) what our rights are. It also supervises the use of power or authority in the State.No one. 4. It is worth noting that a constitution can be unwritten as is the case in England. Therefore the constitution is also a source of power. 2. it also molds the shape of both the legal system and the political system. Grants authority to make laws. and Gives the State legitimacy through the existence of an independent body of laws. It is does not conform to the ideal of constitutional . which regulate the State. State institutions – their creation and establishment as well as the distribution of the function of the State.

to the extent of the inconsistency be void. chapters establishing and defining the role and functions of the Public Service and Judicial Commissions. Form and structure of the constitution “The typical constitution in the region contains the following sections: (a) (b) A preamble (except Jamaica’s). (c) a section on fundamental rights and freedoms. if any other law is inconsistent with this Constitution. (e) (f) chapters defining the powers and establishment of the executive and judicature. this Constitution shall prevail and the other law shall. this Constitution shall prevail and the other law shall. . called a Bill of Rights. For instance the preamble of the Constitution of Barbados states. (d) chapters defining the powers of the Head of State and Parliament. The sentiment is the same in the Jamaican Constitution. if no other law is in consistent with the Constitution. to the extent of the inconsistency.supremacy as Commonwealth Caribbean countries do. subject to the provisions of this constitution. which states: Subject to the provisions of sections 49 and 50 of the Constitution. The Constitution is the supreme law of Barbados and. chapters on citizenship. be void.

(g) (h) chapters on finance. The courts have often written judgments favouring common law and restricting the . But doing this jeopardises the human rights provisions of the constitution. “the Privy Council declared that the fundamental rights which were enshrined in the new Jamaican Constitution were ‘already secured to the people of Jamaica’. These clauses preserve existing law or preindependence common law. One reason for this is the existence of the phenomenon of ‘saving law clauses’ in some of the constitutions such as Jamaica’s. there is a statutory formula giving Parliament power ‘to make laws for peace. order and good government’. This meant that the constitutional rights protected were only those. This pitted common law against the written constitutional guarantees of fundamental rights. Has the written constitutions of the Commonwealth Caribbean created new rights or have they codified rights that already existed in the common law? Some people feel that the constitutions merely codify existing common law. For example the rights accorded are all embodied in international instruments such as the European Convention on Human Rights and the American Convention on Human Rights. They reflect international concerns for fundamental human rights. DPP. This is evident in the Bill of Rights of the region’s institutions. which existed before the advent of the written Constitution.” The protection of fundamental rights – a dynamic legal source? International sources of law have had an impact on the legal systems of the Commonwealth Caribbean. The court found that the rights and freedoms found in the Constitution were subject to ‘existing law’ or saved common law. For example in Nasralla v. in addition.

constitution. AG. Take for instance the case of Robinson v. The case illustrated the conflict between existing law and our Bill of Rights. For instance the introductory clauses of constitutions have given rise to litigation. The United Nations Human Rights Committee. that is the creation of new constitutional rights. The opinion from Jamaica emanated from the United Nations Human Rights Committee. although the common law position is that there is no right to legal counsel. which are specifically mentioned.” There were similar arguments in Collymore v. For instance “in Girard and the St. The problem arises because the constitution then goes on to guarantee redress for violations under other sections. not hitherto contained under the common law. R. Wooding CJ did state that the constitution was supreme law. “The case involved an argument that his right to a fair hearing was violated when his murder trial was forced to proceed without an attorney. Introductory clauses declare rights such as freedom from discrimination on the grounds of sex. Consequently Commonwealth Caribbean constitutions have been interpreted as codifying existing common law. the underlying issue. there was no right to strike. found that this was a violation of his rights to a fair hearing. in rejecting a restrictive view of the Constitution. should be protected. but he still found that the constitutional provisions protecting trade union rights did not include the right to strike. The plaintiff lost his case all the way up to the Privy Council. the court found that no redress was available for a lack of equality on the ground . Therefore if the right is only mentioned in the introductory clause. It has been argued that only those rights. This was justified on the grounds that at common law. AG. it may be interpreted as non-justiciable or non-enforceable. was addressed. Lucia Teachers Union v. The constitutions have been restricted in other ways. Although the case did not specifically refer to a saving law clause. It is not viewed as creating new legal rights.

Take for example the case of Maharaj v.” But it seems as though Caribbean courts are moving away from this restrictive attitude to the potential of the constitution. intends to secure the broadest spectrum of rights to its citizens. The case is an illustration of the generous interpretation of a constitution. “The grounding principle in these pro-right cases is that a constitution is a unique instrument which must be interpreted in light of the ideals and principles which ground it. This is evident in the case of Hobbs et al v. It is one of the reasons therefore that Pratt and Morgan is so famous.of sex as it was not mentioned. In this case “a new remedy in damages for violations of human rights was held to have been created by the constitution”. Constitutions have an evolutionary and a norm-building character. the Court of Appeal spoke of the ‘evolving standards of decency’ and the ‘new sensitivities which emerge as . “Here. In Ministry of Home Affairs v. The underlying presumption of such instruments is that the State. in order to create and protect new rights. through its legislature. AG. R. AG of Trinidad and Tobago. Fisher the need for purpose and generous interpretation was supported. The courts should thus give life to the meaning of the constitution by interpreting it in a broad and purposive manner. the constitutional right to retain council was successfully promulgated.” The interpretation of the Thornhill case was very purposive. except in the introductory clause. “The general constitutional protection against cruel and inhuman punishment found in all Commonwealth Caribbean constitutions was interpreted to include the situation where a convicted person on death row suffered undue delay”. And very recently in 1991. The Constitution of Trinidad and Tobago was generously interpreted to uphold the rights to retain the attorney of one’s choice without delay. Again in Thornhill v.

It is.civilization advances’ which should be reflected in the interpretation of written constitutions. such as capital punishment. It secures the independence of judges and provides that they are impartial and separate from political interference from the political arm of the government. What be called the modern principle of constitutional interpretation of human rights provisions is that a liberal interpretative technique which encompasses the purposes and ideals of the constitutional instrument should be employed. it might further expand to include pre-trial delay. even in contentious areas. therefore.” Separation of powers The principle of the separation of powers is embodied in the constitution. Commonwealth Caribbean courts seem poised to make the constitutional protection of human rights even more elastic. At the base of the argument is the fact that the constitution as a legal source is not static. and affirmed the dynamism of the written constitution as a source of law. because the Privy Council overruled a previous decision and a series of related decisions. and that just as the principle on undue delay had evolved to find such delays unconstitutional. but must constantly evolve so as to measure up to appropriate standards of human rights and other societal values. The separation of powers is important to the administration of justice in the legal system. “There has. . AG of the Bahamas. This interpretative technique is in line with those from international human rights conventions.” This case is revolutionary. In Fisher v. been a steady progression toward a development of a more purposive construction of Commonwealth Caribbean constitutions in relation to the Bill of Rights. as such. Lord Steyn noted that the death row litigation was ‘in transition’. so as to administer justice impartially. a dynamic and flexible legal source.

“Bills of Rights in the Commonwealth Caribbean constitution thus ‘impose a fetter on the exercise by the legislature. which was established for that reason. The power of sentence was to be given to a review board instead of a court. In Hinds it was held that an attempt to establish a Gun Court. It was unconstitutional because only the judiciary and the courts have the right to exercise the judicial function. They wanted to give resident magistrates powers of jurisdiction.Only the judiciary and the courts can exercise the judicial function. confirm this. was unconstitutional. The Privy Council also pointed out that Commonwealth Caribbean constitutions: … embody what is in substance an agreement reached between representatives of the various shades of political opinion in the State. . AG and Hinds v. separation of powers and the independence of judiciary. The Court of Appeal decision was overturned by the Privy Council who held. without it being properly constituted as a court of law. The Privy Council also found that new constitutions are evolutionary. In other words they are grounded in basic concepts of the common law. In Hinds the Jamaican Parliament had wanted to establish a Gun Court. that the creation of a Gun Court was a violation of the separation of powers doctrine enshrined in the constitution. etc Constitutional provisions secure security of tenure for judges. as to the structure and organisation of government through which the plentitude of the sovereign power of the State is to be exercised in the future. which the constitution reserves for Supreme Court Judges. Independence of the judiciary is further ensured because the Judicial Commission. not revolutionary. R. handles appointment and removal of judges. The cases of Farrell v.

which were important safeguards. Entrenchment operates to prevent Parliament from interfering with fundamental constitutional rights. Judicial review determines the validity of ordinary legislation. If the legislation offends the norms it will be declared unconstitutional or ultra vires. This shows that the constitution is in a different and more precious category than that of ordinary legislation. The case of Smith et al v. adding that entrenchment protected provisions. All the constitutions of the Commonwealth Caribbean contain provisions for entrenchment.” Entrenchment of constitutional provisions The practical entrenchment is that certain constitutional provisions cannot be altered except by referendum or by a special majority of Parliament. It can therefore be said to be the basis of the rule of law. . Bahamas Hotel Union explains: Parliament cannot by legislation interfere so as to affect the fundamental rights entrenched by the Constitution without complying with the requirement of the Constitution … The court in Hinds shared the same sentiments. The testing and measuring of other laws and legal sources is carried out by judicial review. This is the ‘Westminster model’ of government.executive and judiciary of the plentitude of their respective powers’." Measuring the validity of other laws and legal sources Commonwealth Caribbean constitutions also contribute to the development law by testing the validity of other law and legal sources. ensuring that they would not be altered “… without mature consideration by the Parliament and the consent of a larger proportion of its members than the bare majority required for ordinary laws. Legislation is measured against constitutional norms.

Since it gives Parliament and the legislature the authority to make law. However they were unsuccessful.” For example in Collymore. hence the legal source of international law can be said to be validated by the constitution. social or cultural rights (ECONSOC) are justiciable or enforceable is an area of controversy in the area of constitutional law. the power given to the State to sign international treaties is found in the constitution. declaring it to be the applicable law in the legal system. The constitution is thus of prime importance in defining and shaping legal sources and ultimately. the legal system in the region. Thus as Antoine asserts.” Economic. These rights relate to the collective and this makes them unique. Similarly. because they are not laws that affect the individual only.If legislation conforms to the constitution it is said to be intra vires. “the constitution presents a formidable challenge to legislation. legislation ultimately owes its legitimacy to the constitution. Even the authority given to the common law in independent Commonwealth Caribbean nations can be traced to the constitution as it saves the common law. the basis of the challenge was that the Industrial Stabilisation Act was ultra vires the Trinidad and Tobago Constitution because it violated the right to strike. These rights maybe enshrined in a constitution or international human rights instrument. for instance the right to form a trade union. ECONSOC rights have an . The validation of other legal sources “The constitution also validates other legal sources in a sense other than the ultra vires concept discussed above. If legislation is ultra vires it will be declared null and void and will be struck from the books. social and cultural rights The extent to which rights are categorised as economic.

But it is so significant it is discussed separately. Parliament has the authority to draft legislation. it is older than Western civilization. examples of similar rights is the right to education and to self-determination. It is becoming even more important because law is being codified more and more in the common law world – including the Caribbean. custom subsists in conduct. In AG v. Although the constitution is considered as a separate source of law it is strictly speaking part of the legislative process in the Commonwealth Caribbean. In Jamaica. the right to collective bargaining was denied.” Legislation is therefore deliberately made. But generally these rights are difficult to enforce in the Caribbean. The justiciability of these rights have been inconsistently applied in the Caribbean. Also legislation is written. The reason for this is that labour law tends to be formulated in the collective. This is particularly the case in labour law. This is the reason it is different from custom. the right to collective bargaining etc. social and cultural impact. It is ancient. Legislation is a legal source that has its roots in the past. Legislation as a Source of Law The importance of legislation This source of law is important in the Commonwealth Caribbean. Custom simply grows or develops through time. it has no draftsman. which emanates from the deliberate law making function of the legitimate authority of the state. for example the right to pay. This authority is conferred by the constitution. Parliament can . Mohammed Ali it was held that rights such as the trade unions right to consultation could be enforced.economic. The nature and role of legislation Legislation is defined as “… the body of legal rules.

Legislation is creative. The doctrine of separation of powers also authorises governments to make legislation. Legislation is therefore the most efficient and the best tool for law reform. Legislation binds itself to radical and new principles of law. it does not have to refer to pre-existing principles. “For this reason it may be. In turn. This is the reason legislation differs from them.also delegate this responsibility to other functionaries and authorities.” Change and innovation in countries are wrought by legislation. We will see that in the future as the Commonwealth Caribbean moves farther away from the English Legal System.” Legislation is its own legal source. Also unlike common law and equity it can be repealed outright. Legislation need only be interpreted under the rules of statutory interpretation. This is one other way it is different from other sources. Therefore as far as codification is concerned common law has contributed greatly to its development. but legislation looks inward to itself – it does not need to refer to other legal sources. more convenient for Commonwealth Caribbean jurisdictions to turn to legislation rather than the common law and precedent to develop a more Caribbean law. those legal principles are embodied in detail in statutes. The doctrine of precedents limits common law and equity. Thus the lawmaking pattern seems to be the following. Common law and equity have no choice but to build on existing legal principles and by manipulating case law. It has also contributed to the definition of the jurisdiction of the courts. Equity and common law produces legal principles. . For example common law and equity depend on the legal source of precedents. It will have to be used to “reverse the alienation of English laws and customs to allow the law to reflect the goals and aspirations of West Indian society.

There are eight other functions. It is similar to consolidation except consolidation deals with statutes. Codification When case law is made into statute it is called codification. But judges do not have the power to reform even when they are supported by public opinion. Legislation also fills the gaps of other sources of law. Functions of legislation The function of legislation is “to carry out law reform. The substance of the law is not altered. 3. In instances case law and precedent are used to interpret and determine legislation. But like consolidation it . There are three methods of consolidation. Consolidation of enactments In certain areas of jurisprudence law has developed piecemeal.However in practice legislation sometimes feeds on case law. Law should not stagnant. The common law may have to be revised if it becomes stale or it cannot be adapted to a particular situation or if the decision was unpopular. 2. There are thee methods of consolidation: (i) (ii) re-enactment (or pure consolidation). and create. Therefore revision overrides the doctrine of precedent. alter or revoke law in order to fulfill the intention of the legislative body and ultimately the people”. legislation is used to clarify and simplify the status of the law. by making amendments. it should be a tool for social progress changing to reflect social needs. only the form. it creates change. Revision This refers to the revision of the common law. Because it is not always easy to determine what a statute means. Which is in keeping with what the law should be. 1. They cannot create law they can only illuminate it. and (iii) by making minor improvements and correction.

If a country incorporates treaties into domestic law because the are a signatory. 4. Collection of revenue or monetary control The sole purpose of some legislation is concerned with fiscal matters such as revenue collection. it is called a code. Antoine is of the opinion that this type of law can be viewed as a more elevated type of legislation. When laws are consolidated and codified. because as a signatory the country has undertaken to do so. . The State policy may be in response to public demand or it can simply be an intention of the State to move in a new direction. This can be done by passing legislation that mirrors the treaty or parts of it. Social legislation This is legislation which is concerned with the day to day running of the country. Public policy Parliament can legislate on State policy that is the public interest. Currently draftsmen are trying to codify labour laws of the Commonwealth Caribbean. Implementation of treaties – incorporation When a country becomes a signatory to a treaty. 6. the laws of the country are revised in order to conform with the treaty. Legislation like this is usually delegated by Parliament. In Jamaica an example would be the General Consumption Tax Act (1991). So here the function of legislation is to make international law apart of domestic law. Take for instance the Money Laundering Act (1998) (Jamaica) and the Money Laundering (Proceeds of Crime) Act (1995) (Bahamas) are two examples of several countries in the region that have incorporated international money laundering agreements into domestic law. An example is immigration regulations.simplifies and clarifies the law. The process of making treaty law enforceable under local law is called ‘incorporation’. that country has to legislate to enforce the decisions of the international courts. 5. 7. They also gibe them power to make regulations.

It is mainly used in relation to the armed forces. There are also special forms of legislation known as Orders in Council. They are created by its’ ‘legislative arm’ according to the doctrine of the separation of powers. and autonomic legislation. Consequently they are not a viable option to Acts of Parliament. In the Commonwealth Caribbean the Head of State is the Queen. .” The prerogative is exercised by the Crown or the Head of State. Change is more efficiently effected by legislation in response to these groups. but they can also be made under the delegated law function. the Governor General is her representative. Acts of Parliament Acts of Parliament are created by Parliament. but they are to be considered as a more dignified form. Orders made under the delegated function are similar to subsidiary legislation. Orders in Council are made under the prerogative power. 2. Orders in Council are not as scrutinised as other types of legislation. For example human rights groups. Types of legislation There three main types of legislation: 1. These two types must be distinguished. Acts of Parliament (or statute). the civil service and in states of emergency. delegated legislation. There are two kinds of parliamentary Acts.8. This instrument is hardly used. Orders in Council from the prerogative “Orders in Council are made under the prerogative with the advice of the Privy Council. Response to pressure groups Sometimes the impetus behind a change in law is generated by a pressure group. 3.

and Third reading – the Bill is passed. Second reading – the Bill is debated. second and third reading of the Bill. It is the date when the Head of State approved it.1. Legislation. 4. Representatives in Parliament on behalf of the people propose them. The content and aims of the legislation will be apparent from the aim. The proposer or sponsor may be a company. 2. Public Acts these Acts affect the entire nation. ‘long title’ – this is the Act’s official name. ‘short title’ date of assent – does not necessarily have to be the date when the statue comes into force. that would be the Governor General. . First reading – announces the title of the Bill. corporation or private organisation. Then there will be a first. In our case. The Upper and Lower Houses must discuss proposed public legislation. 3. is also public legislation. 2. Private Acts this kind of Act only affects the proposer or the sponsor of the Act. which is passed in conformity with international treaties or agreements. words of enactment – these will simply be ‘be it enacted …’. That is the Senate and the Cabinet must have a Parliamentary debate. Statutes or Acts of Parliament consist of the: 1.

It is the most popular form of delegated legislation. but any Member of Parliament can introduce one. they are also called rules or orders. Ultimately. These bodies have the power to do so because they have been given this power by Parliament. Bodies that make subsidiary legislation (statutory bodies) do not have complete authority. They are often statutory instruments which are quoted by year and number as well as a title. both have force of law and legal authority. The scope of bylaws is restricted because they pertain to the local jurisdictions of the body that made them. Delegated or subsidiary legislation Delegated or subsidiary legislation is legislation created by subordinate or statutory bodies. But only Parliament has the authority to create the substance of legislation. Consequently subsidiary legislation is subject to more scrutiny by Parliament and the courts. the authority to create legal policy. Regulations or orders Government departments create regulations.Bills are usually introduced in the Upper House. But they are both are both legal sources. for instance SI 1998/34B The Weight & Measurement (Conversion of Unit Measurement) Order. In other words Parliament has delegated power to them. Bylaws Bylaws are not statutory instruments unless the enabling parent Act declares them to be. government usually introduces them. They are given wide discretion to formulate the details of legislation. it is Parliament’s responsibility to create law. Bylaws and regulations are the main types of delegated legislation. So Acts of Parliament (or statutes) are two different creatures. Bylaws are made by governmental authorities subordinate to Parliament. They therefore only bind those who come within the restricted scope. Complete authority means. Or .

example local authorities or independent statutory corporations that regulate administer or manage certain districts. Chambers of Commerce and The Bar Council. Autonomous legislative bodies such as churches. undertakings. Speed and efficiency – Parliamentary procedure for passing law is lengthy. 3. Functions of delegated legislation Legislation is delegated for administrative efficiency. Consequently the law will be better able to keep up with developments. Technicality – the subject may need expert knowledge. Bulk – it is better to put the details of the law in delegated legislation. 2. 4. The details of the Acts which are embodied in delegated legislation are usually only used by subsidiary bodies or bureaucrats. Flexibility – delegated legislation can be revoked or amended easily. 5. property etc. Plus they have to make time to debate it. make autonomic legislation. Because of Acts of Parliament are primarily for public consumption. . These types of delegated legislation in limited cases apply to the public but it is meant more often for its own members. Special knowledge – creating the legislation may also need specific or local knowledge from experts or from people of a particular location. 1. Autonomic legislation This is a special type of delegated legislation. In contrast delegated legislation in contrast is speedy. 6. Future developments – it is easier to add details to delegated legislation in the future than it is with Parliamentary Acts.

The Privy Council struck down this Regulation because it had not been published in the Gazette.Autonomic legislation is however subject to judicial control under administrative law. . By participating in public debate ordinary citizens can participate in the process. approval is implied. they are supposed to represent the people and must void violating this duty.the document is presented to Parliament. Under the Act the Synod retired Reverend Gatherer when he turned sixtyfive. This means courts examine the legislation to see whether it is in accordance with the principles of the constitution or whether it is ultra vires. Parliament is an elected representative government. Therefore they must supervise and scrutinise delegated legislation. 24). Controlling Acts of Parliament In the Commonwealth Caribbean. Gomez (1992) 41 WIR 68. This responsibility is critical. 1. Acts of Parliament must be measured against the constitution whish is supreme. 15 of the Interpretation Act (1968) that an Act or Regulation be published (in the Gazette) before it comes into operation. Therefore under the principle of judicial review. Laying . Acts of Parliament are subject to judicial scrutiny. for the good government of the Church (s. The Anglican Church Act established Diocesan Synod and gives it power to make regulations etc. for example Gatherer v. They therefore monitor delegated legislation in four ways. It is required by s. Parliamentary control of delegated legislation The ultimate responsibility for the creation of legislation lies with Parliament. Parliamentary debates are also an important control as statutes are also an important control as statutes can either be amended or rejected.

does not act with more power than it has. Publication . Administrative bodies acquire decision-making power when Parliament delegates legislation creation to them. When the courts review the body’s actions that process is called judicial review. 4. The administrative law principle of judicial review is embodied in the constitution of the Commonwealth . this wrongdoing is described as ultra vires. it will usually be published in the Government Gazette. scrutinising the use of delegated Parliamentary power is therefore in keeping with this function. Parliamentary control may also be subject to judicial control. The fundamental role of the court is to uphold rule of law and justice. The courts are able to carry out judicial review because it has an inherent jurisdiction to supervise subordinate decisionmaking bodies. If the body acts beyond this discretionary power. Laying subject to affirmative resolution – after laying an affirmative vote must be obtained so that the legislation is passed. When an administrative body acts beyond its power. to which power is delegated. It must be laid in a specified period or it will become void. the courts will view the body’s actions so that a remedy can be offered to members of the public who have been affected. Judicial control of delegated legislation The main concern of the courts in relation to delegated legislation is that delegated power is used appropriately. 3.before legislation becomes law it must be published.2.legislation is laid before Parliament for a specified time. Laying subject to negative resolution . The court has to ensure that the body. if there are no objections it is passed. This decision-making power is discretionary.

The court will weigh whether the power conferred by Parliament has been abused or not. But if directory procedures are not followed. At the pre-emergent stage the courts look at procedure. The: (i) (ii) pre-emergent stage. The legislative process of delegated legislation can be controlled at two stages.Caribbean. Procedural ultra vires Whether or not legislation is procedurally ultra vires will be considered at the pre-emergent control stage. At the emergent control level test whether the legislation is valid after it comes into effect. They will determine whether the legislation conforms with the parent statute. For example pre-conditions such as laying. the legislation will be void. If there are preliminary procedural requirements. and post-emergent stage. The judicial process is divided into procedural ultra vires and substantive ultra vires. Barbados has actually codified the principles of judicial review in the Administrative Justice Act (1980). Procedural requirements can be either mandatory or directory. the court may find that the legislation was not legitimately effected. Where mandatory procedures have not been followed. . which should be carried out before the legislation comes into effect. Therefore it is important to us. At this stage the court examines the process by which the legislation comes into being. the regulations will not be void. The use of the court to control delegated legislation by judicial review is apart of an area of law known an administrative law. which were not followed.

Commissioner of Police. Three months after the Regulations had been read. it was held to be ultra vires and consequently void. But is certain that procedures required by the constitution are mandatory procedures. Take for instance. The courts will look at parent Acts to determine what the preconditions are. But the minister did not fulfill this condition precedent before he exercised the power to make the regulations.What constitutes mandatory and directory procedures is uncertain. neither House of Parliament had approved it as is required. As a result. the case of Biggs v. the constitution required that he put a review tribunal in place. Courts have not been consistent in determining which is which. Under the Extradition Act the minister could make regulations. However before he did this. Doorly. Some preconditions are the requirement for consultation or laying. Another example is AG v. The court held that laying was only a directory condition precedent. The precondition was laying. . For example in Kelshall v. Pett the regulations effected by a minister were held to be void because he failed to observe a condition precedent (or precondition) which was required by the constitution. so the regulations could stand. Barker. A case where a precondition was not fulfilled but the legislation was still found to be valid is Springer v. The regulations were held to be invalid because the condition precedent was not fulfilled and Biggs went free. In this instance the precondition stipulated that the regulations be effected by the affirmative resolution procedure. This case involved the infamous train robber. The condition precedent was that the regulations should lay in Parliament for a specific time. The minister had the authority to declare a state of emergency. which set the conditions necessary for entry into secondary school. The regulation was the 1982 Education Act Regulations. It was invalidated because the mandatory regulation was not fulfilled.

The issue was whether the minister could intervene in the admissions process of secondary schools. The reason was the government wanted to change the boundaries of Port Louis. the Education Regulations 1982 was held to be ultra vires because it purported to give the Minister of Education power which the enabling Act did not give. it would be ultra vires the delegated power if that local authority also made provisions for the regulation of parks.” If for example government gave a local authority the power to make regulations for playgrounds. Consultation is usually mandatory. But the local authority needed more time before it expressed its’ views. For instance in AG v. Delegated legislation will not be valid it goes beyond the scope of the parent Act (or enabling statute). They asked for an extension and the minister refused. There will be a breach of ultra vires in the substance sense if a functionary makes legislation outside of the limits of a parent Act or outside of the subject matter of the delegated power. Substantive ultra vires Substantive ultra vires is concerned with the substance of subsidiary legislation. AG. For example a minister was required to consult with a local authority in Port Louis Corporation v. which require this precondition (required by the parent Act. Courts will make sure that the actions of tribunals and the scope of delegated legislation does not go beyond the function of the parent Act. “Subsidiary legislation must be confined to the limits of the parent Act. It was held that the Education Act (1981) did not give a minister the power to determine the qualifying . The regulations were found ultra vires.The requirement of publication is usually strict. Since it is the parent Act that gives the authority to make subsidiary legislation. Regulations. Barker and Another . only become legal when they are published. it would be ultra vires or outside of the jurisdiction granted. Consultation means that the minister or other delegated body consult with other bodies.

Morraine and Another. The board did not have jurisdiction to determine disputed elections. it was beyond the jurisdiction of the parent Act. If subsidiary legislation goes against fundamental norms it will be declared ultra vires. he may be found to be ultra vires the parent Act. like Parliamentary Acts cannot violate . Amongst other things the School Board considered school tradition. administrative bodies must also not act ultra vires to constitutional norms or other legal norms. Also delegated legislation. The board also did not consider the psychological effect of the refusal and had applied the Regulations inflexibly. Courts will look at the use of delegated power as well. For example if the use of a discretion is clearly unjust it will be ruled ultra vires. or takes unreasonable considerations into account. injustice and unconstitutionality Apart from not acting ultra vires its’ powers and not making subsidiary legislation which is beyond the scope of parent Acts. Here the board had the authority ton regulate the period when elections to the board should take place. Therefore reg 25(93) of the Education Regulation 1982 which said that he had this power was ultra vires the Act and consequently invalid. Another example of substantive ultra vires is Bonadie v. If a delegated authority abuses his discretionary power by deciding matters arbitrarily or unreasonably. Unreasonableness. Kingston Board . But the Board made a bylaw to this effect. a School Board refused to allow a student to wear Muslim dress to classes. the delegated legislation or the fundamental precepts of law. The bylaw was found to be ultra vires and therefore invalid. Consequently the School Board was found to have acted ultra vires the Regulations. For example in Mohammed v.mark of a pupil in the secondary schools entrance exam.

(v) The outcome of judicial review is uncertain. 3. and it must not violate constituted norms or other legal norms such as public policy or justice. This is especially significant in the Commonwealth Caribbean where we are not in the habit of suing the government or government-associated procedures. the appropriate procedural safeguards must be adhered to. it must conform to the jurisdiction of the parent Act. (iv) The controls against abuse are not always efficient. . So. (iii) The volume of subsidiary legislation is significant. The most important control is judicial review and this is not carried out unless a citizen challenges delegated legislation or exercise of power. purpose and in its creation. (ii) Delegated authorities often sub delegate to others. intention.principles of the constitution. Customs and Conventions as Sources of Law “The courts must declare customs and conventions as law and not mere social practice”. 2.” Criticisms of delegated legislation (i) Its’ undemocratic by un-elected subsidiary power is exercised bodies. delegated legislation must pass a threefold test: “1. It is difficult to keep track of it.

in one sense. This is especially apparent in land law or property law. Custom refers to local custom. But if common law exists then common law will take precedence. custom forms a distinct body of law that applies to a locality. They are: 1. That party must also prove that certain tests are satisfied. 2. (iii) peaceable enjoyment. In the Commonwealth Caribbean. such as a parish. . They are: (i) (ii) antiquity. The party who pleads customary right must actually prove that it exists. The common law rules of custom “Custom may be viewed as both an historical and legal source of law in the Commonwealth Caribbean since. continuance. county or borough. it is the principle source of all English law. not surprising considering the above. This source of law is not relied upon often. it must be an exception to common law. as it formed the basis of the common law which has been transplanted to the region.Customs Antoine feels that legal systems of the Commonwealth Caribbean do not reflect out customs.” In England a distinction is made between common law and custom. which become law. Our customs are imported to colonisation and slavery. Custom comprises two distinct elements. and it must be confined to a particular locality. Customary rules are not given judicial recognition until settled by a judicial decision.

Convention Convention as a source of law in our legal system is a topic of much debate in the Commonwealth Caribbean. In the UK conventions are basically non-justiciable practices. This means that they are no longer just conventions. Lucia is the Civil Code is silent on a point. they are hard law and are enforceable. It is significant to certain procedures such as the exercise of sovereign power. These tests do not apply neatly to the Commonwealth Caribbean. Antoine proposes however that there are some English conventions. For example the year 1189 is fixed as to the time from which a custom is considered antiquated.(iv) mandatory. The reason is English conventions were transplanted to our legal systems as codified law enshrined in our constitutions. which were not meant to be enforceable in our jurisdictions. In St. (v) certainty or clarity. We cannot use that date for historical reasons. The short answer is yes. (vi) consistency. it will allow parties to resort to custom. The controversy for us is whether they are justiciable here in the Commonwealth Caribbean. For instance Parliamentary privilege which is meant to apply solely to the Houses of Parliament in . and (vii) reasonableness. Therefore those conventions have constitutional authority. Other than that our jurisdictions are so small it begs the question as to what exactly is a locality? Does a community of a 100 people suffice? Consequently it is rare to find cases that make reference to custom.

England. First. has resulted in an osmosis beneficial to the development of international human rights standards in the region. They held that the privileges. They are: (i) (ii) treaties or international agreements. Therefore the speaker of the Assembly had no power to commit for breach of privilege. International Law as a Source of Law According to Antoine international law is not traditionally considered as a separate and distinct source of law. Gajraj the Guyanese courts agreed with this position. Secondly. This is so for two reasons. coupled with the Privy Council’s newfound justification for expanding the human rights jurisprudence. several Commonwealth Caribbean countries are signatories to the Optional Protocol on Human Rights. But today international law influences legal systems all over the world. immunities and powers of the English Parliament were not automatically received by colonial legislatures. there is a symbolic relationship between international human rights rulings and the Commonwealth Caribbean law because of the similarity between Commonwealth Caribbean constitutions and international rights instruments. and (iii) general principles of law recognised by nations. international customary law. a significant factor …” International law is derived from three sources. International publications courts as an also consider highly qualified auxiliary source of law. This. The . In Jagan v. “The impact of human rights decisions on law and legal systems is particularly significant in the Commonwealth Caribbean. For instance in the Commonwealth Caribbean it has influenced our constitutional and human rights law greatly.

in which it was decided that the right to counsel.interpretations of international agreements are also apart of the body of international legal norms and principles.” Some examples are the: (i) (ii) UN Declaration on Human Rights. The ruling in Pratt . UN Covenant on Civil and Political Right. Jamaica. and (iii) Optional Protocol on Human Rights The Optional Protocol is an optional provision of the UN International Covenant on Civil and Political Rights. Consequently the UNHRC was perceived to be obstructing popular justice in the country. It has had undoubted impact in Jamaica. “These declare certain legal principles believed to be desirable for all nations. Its use was also notable in Robinson v. agreements or conventions influence all legal systems. It was instrumental in formulating the Pratt and Morgan principle. when the accused is facing the death penalty is a fundamental human right. These interpretations are handed down by courts (regional or international). Jamaica did this so it could resume hanging people on death row and in order to hang them quickly. Such international declarations protocols. which may develop into binding international custom. International law becomes part of domestic legal systems when they are adopted through conventions and treaties. international committees or committees which have the authority due to power granted by particular international instruments. Death row prisoners had had successful recourse to the UNHRC. or by way of accepting practice. In 1998 Jamaica withdrew from the United Nations Human Rights Committee (UNHRC).

________________ Students are instructed to read Chapter Twelve of Rose-Marie Belle Antoine’s. . Regional law Regional treaties and agreement also generate legal obligations and influences. Conclusion International law can now be legitimately claimed as a source of law in the Caribbean. and instruments.and Morgan caused panic in Commonwealth Caribbean government who are burdened with increased crime levels. which is similar to CARICOM for the countries of the Eastern Caribbean states. The most significant regional instrument is the CARICOM Treaty. As a source of law their effect is similar to international treaties. if only in the field of human rights. In addition there is the OECS. Commonwealth Caribbean Law and Legal Systems.

In other words we practice it because it was transplanted to the region under the English. Originally this practice was oral. These rules were formulated in a flexible and informal manner by the King’s courts. The common law courts comprised of three branches. It is relevant where there are no applicable statutes. “This is because the common law is really the outgrowth of historical custom. 2. Common law or case law is a legal as well historical source. .(ii) common law and equity – origin and development in the Caribbean. the Court of King’s Bench. 3. It is this ad hoc legal growth that makes common law unique. Common law develops on a case-by-case basis. Common law is legal principles derived from cases. consolidated by the Norman Conquest when these local customs were unified into one coherent system of law ‘common to all men’ hence the term ‘common law’”. It is a historical source because the existence of the common law tradition in the Commonwealth Caribbean is directly linked to our colonial past. The court builds on the previous judgment in each case. These courts were collectively known as the common law courts. they were: 1. English common law can be viewed as a historical source because its’ development is linked to the historical development of that country. Common law or case law is an important source of law in the Commonwealth Caribbean. Introduction to Common Law Another name for common law is case law. and the Court of Common Pleas. the Court of Exchequer. in other words it was a body of unwritten legal rules.

Eventually the courts developed rigid administrative procedural rules.But as the common law developed it lost its flexibility and informality and became rigid and identifiable. It is commonly said that the law of equity is based on rule of conscience. An example or procedural rules is the ‘writ’. Yet. equity means fairness. Equity as a Source of Law “We saw earlier that the common law grew out of the customs and practices of the English. we are not only referring to the body of law which developed in separate and different English courts. This also another reason the common law is unique. For. today it is not strictly true to say that the common law is an unwritten body of law. as promulgated in the ancient common law courts. admirality and ecclesiastical courts. it embraces such notions. but in a legal sense. In laypersons’ language. and . equity is simply a branch of the law standing apart from the common law. It may be defined as those principles of English law which were developed and applied in the chancery. however. justice. due to the system of case reporting it has been solidified. Equity is apart of the common law tradition but it is NOT part of the common law. It comprises: 1. This means that the common law has a dual structure. when we speak of the common law as a legal tradition. it is a much more specific concept. Today. as it is a system which was inspired by ideas of justice. or equitable principles. Still. The writ regulates the initiation of legal proceedings in court.” Equity grew up alongside common law but it is a distinct and separate body of English law. common law rules. or what is morally just. This body of law is known as ‘equity’. Therefore.

“Forms of action included a writ and particular rules of pleasing and proof. the Court of Chancy develops equitable rights. rights and remedies. The common law courts focused more on procedural accuracy. By the end of the 13th century the kinds of available writs and their forms of action had become inflexible.” Equitable rules are laws. so many litigants were left without a remedy to their problems because courts were confined to the precedents that already existed as well as to procedures imposed by the court. but it lost those characteristics. As a result common law in some instances had become irrelevant to society. but a theoretical distinction is made between equitable rules. It can mean being apart of the common law tradition or it can mean legal principles.2. rather than justice. So where common law could not satisfy there was recourse to equity. the rule of equity. The common law had been designed to be flexible and innovative. “Take writs and forms of action for example”. Common law courts develop legal rights. a specific form of judgment and a method of executing judgment. But it can also mean that which is not equity. No action could be . which come from case law or precedent. Under the common law. rights and remedies as well as legal rules. Stare decisis also curbed creativity. ‘Common law’ can mean different thins. the administration of common law became very inflexible. This happened because the doctrine of stare decisis encourages rigidity within the law. Its’ rigidity created chaos and inefficiency. The historical justification for and development of equity As the doctrine of stare decisis developed. In other words it is the law “developed by the ancient common law courts as distinct from that developed by the Courts of Chancery. these systems of writs and forms of action were mandatory.

who was usually a member of the King’s clergy. There were. Sometimes a plaintiff wants the defendant to return something. such as land. He acted on the conscience of the parties and issued writs of attendance and gave relief.brought in the royal courts without a writ (which was then a letter in the name of the King commanding someone to do what was specified in the writ). Damages were the only available remedy.” There was also a need for new remedies because of the development of society’s social and commercial life. “The matters which were brought to the King through the Chancellor were those in which no suitable redress or remedy could be found under the common law as had been developed by that time. Chancellors built up a body of principles called equitable principles. This remedy was not always satisfactory. informal petitions were addressed to the Council. Equitable principles sought to correct common law’s deficiencies. or to evict the defendant from land. If they could not. .” The Chancellor had wide discretion to decide cases justly and fairly. The Chancellor was the King’s Chief Minister. Litigants had to try to fit their circumstances into the writ in order to bring their cases before the common law courts. ‘writs of right’ commencing an action of land and writs of trespass’ for injury to person or property. The Court of Chancery Originally the Court of Chancery was the ‘sessions of the Chancellor’. In the 15th century the court became a separate and distinct court. As a result new equitable remedies were developed. they could obtain no redress. which ordered specific relief in the interest of justice. for example. Damages is the payment of money as compensation for a wrong. even today it is still not always a satisfactory remedy. Where the common law could not give a remedy or enforce a remedy. These petitions were then passed to the Lord Chancellor.

This discretion is exercised according to fixed & settled rules. If damages – a legal remedy – is sufficient the court may not award an equitable remedy. a mere agreement to create a formal lease is enough to create a legal obligation due to the maxim. In Dudley v. as long as his legal rights have been infringed.” Equity will also give effect to legal arrangements if the intention to create legal obligations exists. they illustrate how the law of equity will be applied. There are sayings that illustrate the nature of equity. In equity a remedy is only granted if the court decides that the plaintiff deserves it. For instance if a deal has been struck and acted upon but no formalities had been undertaken equity will give effect to the intention of the parties. he will have a definite right to a remedy. In equity. Therefore the chief differences between equity and common law is that a remedy in equity is discretionary. He was supposed to be the ‘fountain of justice’. That is the nature of equity. but the plaintiff behaved inappropriately he will not receive a remedy. A few are: . “For example.During this age the King was thought to be God’s representative and therefore infallible. for example where hardship would result if a contract were enforced. Dudley it was said that equity does not destroy the law or create it. equity may grant remedy. remedies are discretionary. but assist it. In common law remedies are available ‘as of right’. The nature and the content of equity Even if not strict legal right exists. So even there was a wrong. ‘equity looks on that as done which ought to be done’. it corrects the deficiencies of common law. Therefore the Court of Chancery existed so that he could exercise his power to undo injustice in the legal system. The conduct of the plaintiff is not taken into consideration.

They were the plaintiffs and were trying to get an injunction to refrain a breach of confidence and copyright. Equity has also created new remedies. Equity features more prominently in property and contract law. They include: .(i) ‘Equity does not suffer wrong to be without remedy’. and must have done no wrong in respect of the matter before the court. existence of an equitable interest. It arises where property is conveyed to T (the trustee) n circumstances where equity will compel him to administer it for the benefit of B (beneficiary). This means that a person who comes to equity must come with a clear conscience. The trust is also instrumental in succession law where property is involved. The case that illustrates this principle involved the cult of Scientology. such as in the drafting of wills. “The trust is peculiar to common law systems. in order to get a remedy. This one of equity’s best-known maxims. But the court ruled that they did not deserve a remedy in equity because they had been protecting their secrets by deplorable means. This maxim is different from ‘clean hands’ because it looks to the future not the past. So where not remedy is available under common law equity has the ability to create a new remedy. So if someone is applying for equitable relief he must be prepared to act in an equitable manner himself.” Examples of new rights created by equity are the: (i) (ii) rights of a beneficiary under a will or a trust. and (iii) equity of redemption. (ii) (iii) ‘He who seeks equity must do equity’. ‘He who comes to equity must come with clean hands’. For example the ‘trust’ is an equitable creation.

So equity is no longer viewed as being corrective of the common law. So Parliament will extend equitable jurisdiction into areas that courts held none existed. in the areas of tort. Equity used to be concerned with correcting the inflexibilities of common law. . The modern expression of equity The rules of equity today are just as strict as common law. But now greater emphasis is placed on exercising the discretion within well-defined circumstances. injunctions have also lead to the development of new rights such as the law of restrictive covenants in property law. (ii) specific performance – this compels someone to perform an obligation such as under a trust. (iii) restitution – when the defendant has to place the plaintiff in his original position before the wrong occurred. injunctions have had wider use. Originally the Court of Chancery was able to create new rights and remedies. The role of the legislature in creating equitable principles and offshore developments Sometimes Parliament is the only body that can make the necessary changes in the law For instance judges may be too timid to exploit “the creative potential of the law”. In turn.(i) the injunction – this prevents foreseeable wrong from occurring. For example in the United Kingdom since the Judicature Acts 1873 – 75. It used to be said that equity varied with the length of the Chancellor’s foot. labour law and administrative law.

New developments by the courts Courts have not been as adventurous sine the 19th century. A Mareva injunction is an interlocutory injunction preventing the defendant from removing assets from the jurisdiction. Both remedies derive their names from cases. For example a very important principle of trust law is that trusts cannot be created in perpetuity. Legislation has been used to change traditional trust law principles. to that person’s detriment. But modern times have seen some in the law of equity. For example the Anton Pillar order allows a defendant to enter a plaintiff’s premises to inspect documents and remove them to the custody of the plaintiff’s solicitor. . which he knowingly or unknowingly has allowed or encouraged another to assume. Mareva injunctions and Anton Pillar orders are used for enforcement. This is significant because ‘the trust’ is a corner stone in this area of law.Offshore legislative development In the offshore jurisdictions of the Commonwealth Caribbean there has been innovative development f equitable principles. It is informally known as a ‘freezing order’. For example the creation of the doctrine of equitable estopple and the equitable remedies of the Mareva injunction and the Anton Pillar order (or search order). It is a form of mandatory injunction or order for discovery. Equitable estopple is a remedy that stops a party from denying something. But offshore jurisdictions have redesigned this rule to extend the period of specified perpetuity or abolished the rule completely. those countries have created laws in order to address the needs of investors. The reason for the growth of law in the area is.

equity continues to perform the same function complementing and supplementing the common law in accordance with moral notions of justice and fairness. There would still be a coherent system of law if equity were abolished. The Act abolished the separate courts (common law courts and the Court of Chancery). Still. But they are still two separate bodies of law.” .” Eventually common law and equity clashed. equity will take precedence. For example. The Judicature Acts 1873 – 75 took care of this problem. “The general effect of the Judicature Act was to convert the ‘exclusive’ and separate jurisdiction of equity into a concurrent jurisdiction and to abolish its auxiliary jurisdiction. where there was a threatened commission of a tort. The Court of Chancery had an auxiliary jurisdiction where the common law recognised a legal obligation and gave a remedy but was unable to enforce the remedy. so damages is still a common law remedy and equitable remedies are still discretionary – but one court is able to grant both remedies. In addition. “Originally the Chancery Court had an exclusive jurisdiction in equity where the common law had no remedy or relief. it could grant an injunction to refrain someone from committing a nuisance. It was formulated to address the shortcomings of common law. It then transferred their jurisdictions to the new Supreme Court of Judicature. The consequence is that now the administration of common law and equity is fused. It is important to remember that when there is a conflict between equity and common law. the court of equity had a concurrent jurisdiction where the common law recognised the right but offered no remedy.The relationship between the common law and equity Equity is not a self-sufficient body of law. It is the common law’s ‘safety valve’. There is therefore no need to go to a separate court if one wishes to obtain an equitable remedy.

as a personal representative of the king. but he himself.Equity has precedence over the common law Equity. So a separate body of law. heard pleas which the common-law courts were unable to handle. The law of equity and the Court Of Chancery grew out of the Norman Kings’ Council as did the common law. at least in the early period. Procedure. gradually developed. . equity. too. the Court of Chancery. Under the Normans the chancellor was the most powerful executive officer of the king and the chief law member of the King’s Council. Equity had precedence over the common law because its degrees applied to the person of the defendant and disobedience to a decree was a contempt of court. was more flexible in chancery. with a separate court. He not only issued writs which permitted an aggrieved person to bring an action in a common-law court.

The operation of judicial precedent allows for development of the law. and we are not at liberty to reject them. because we think that the rules are not as convenient and reasonable as we ourselves could have devised.(iii) precedent. Judicial precedent means Where judges follow previously decided cases. where they are not plainly unreasonable and inconvenient. But the basic purpose of the rule of law is to provide 1.EWCA Crim 1499 A binding precedent is a decided case. consistency and certainty. however. in those to which they have not been judicially applied. uniformity. consistency and 3. the Law Report is also called a precedent. The Doctrine of Precedent . 2. and for the sake of attaining uniformity. to all cases which arise." (emphasis added by the Court of Appeal in R v Simpson (2003))3 All ER 531. we must apply those rules. The decided case itself—a 'precedent' the report of the case. Binding precedents . and to abandon all analogy to them. certainty The principles should not. which a court must follow. One of the earliest statements on the rationale underpinning this doctrine was made by Parke J (Mirehouse v Rennell (1833)) when he stated: "Our common-law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedent.mechanics of precedent Introduction Judges must not be seen to be usurping powers of Parliament. be regarded as so rigid that they cannot develop in order to meet contemporary needs.

which would otherwise be binding. by distinguishing it on the facts or on the legal principle involved. Obiter dicta Rondel v Worsley [1969] after seven days of legal argument and the citation of 92 cases. Four of their Lordships said.Reason for the Decision... Persuasive precedents Is one which is not absolutely binding on a court but which may be applied e. = keep to the decisions of past cases Stare Decisis. Ratio decidendi The only binding part is the ratio decidendi. Obiter dicta is other comments made by the court ‘things by the way’ and do not always form part of a ratio decidendi Cases are not binding on questions of fact..Ratio Decidendi Standing of the Decision. A later court can circumvent an inconvenient precedent. Stare rationibus decidendis stare rationibus decidendis. such as the drawing of pleadings. so the House of Lords may follow a Court of Appeal decision. Decisions of the Privy Council are not strictly speaking binding but are persuasive (but note can be followed using the rule of James and Karimi. Decisions of courts lower in the hierarchy. obiter. In this case the Court of Appeal preferred a later Privy Council case to a House of Lords decision relating to the law of provocation in murder. the court held unanimously that a barrister is not liable in tort for the negligent presentation of a case in court and the preliminary work connected therewith. that a .g. and the Court of Appeal may follow a High Court decision..Only binding if the legal principle involved is the same and the facts are similar.

Old cases If the case is old. Ex tempore A considered judgment delivered after being . His dictum has become known as the 'neighbour test' and was expressed in these words: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. the date of the case. though clearly obiter. whether judgment was reserved or given ex tempore." This dictum. in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. then. it has stood the test of time and now represents well-settled law. has been adopted in subsequent cases. the prestige of the judge(s) involved. Who. Alternatively. whether there was any dissenting opinion. whether the case was contested and whether the point in question was argued or merely conceded by counsel. for example The Dorset Yacht case. If the case is recent. The weight of persuasive precedents The weight to be attached to any individual persuasive precedent will depend for example on the rank of the court in the hierarchy. Alternatively. it can be attacked as being of insufficient antiquity. obiter. observers hail it as the most up-to-date pronouncement on the matter. is now out of touch with changed conditions. Obiter taking on the force of ratio A good example of a highly influential dictum is the statement of Lord Atkin in Donoghue v Stevenson [1932] where he attempted to lay down a general test for determining when a duty of care arises in the tort of negligence. that a barrister would not be immune from an action in negligence in relation to matters unconnected with cases in court and the preliminary work connected therewith.solicitor acting as an advocate was entitled to the same immunity. three of their Lordships said.

The magistrates accepted that there was no actual bodily harm. Significance of dissenting judgments Weight given to a persuasive precedent will be reduced if any dissenting opinion was given in the case and.A.their opinions are always reserved. That the hair cut was "dead tissue" was not relevant. They then went further and said something that they were not asked about. the DPP appealed to the Queen's Bench Division. Harm was not limited to injury to the skin. in particular. adv. There was no precedent on this type of assault. volt or C. so the QBD created one: Held: Cutting off a person’s hair amounted to ABH.reserved will usually carry more weight than one delivered ex tempore 'off the cuff' at the conclusion of counsel's argument. Often abbreviated to cur. flesh and bones and extended to hurt and damage. and obiter. Cuna advisari volt The law reports signify a reserved judgment by the words cuna advisari volt ('the court wishes to consider the matter').E House of Lords are always reserved Although sometimes the House of Lords announce the actual decision at the end of counsel's argument .without giving their reasons at that time . Original precedent. Such a case has not been subjected to the close scrutiny and refining process associated with skilled legal argument. but they thought was relevant: . a worked example In DPP v Smith [2006] QBD the defendant went to the home of his ex-partner and cut of her pony tail with kitchen scissors. Unargued cases Persuasiveness is also affected if the case was not contested or if the judge decided the point in issue after being conceded by counsel. by a judge whose views command the highest respect.

Injustice of retrospective declarations. People are thereby treated differently. Retrospective declaration Means that judges do not make or change the law but merely declare it. . [1951]. Overruling Overruling A higher court in a different. Munster v Lamb (1883) Brett MR "The judges cannot make new law by new decisions.Obiter: If paint or some other unpleasant substance were to be put on a victim’s hair that would to could amount to actual bodily harm. The HoL The House of Lords can overrule itself it. Reversing. are constantly arising. only to be told now that it is not and never has been the law." Injustice to the parties who have relied on what they understood the law to be. the House of Lords reversed a previous decision of its own for the first time. later case overturns a principle laid down by a lower court. The dissenting judgment of Denning LJ in Candler was vindicated in Hedley Byrne. overruling and distinguishing Reversing Reversing A court higher overturns the decision of a lower court on appeal. that there could be liability in English law for negligent misstatements thereby overruled Candler v Crane Christmas & Co. the judges are obliged to apply to then what they consider to have been the common law during the whole course of its existence and therefore they seem to be laying down a new law. Hedley Byrne & co. Ltd v Heller & Partners Ltd [1964]. The House of Lords held. they do not assume a power of that kind: they only endeavour to declare what the common law is and has been from the time when it first existed. But inasmuch as new circumstances. In Re Pinochet (1999). Smith was found guilty of ABH. And new complications of fact and even new facts. whereas they are merely applying old principles to a new state of facts. or depart from earlier decisions.

Richard Arnold QC on 27 May 2006. mistake or misconstruing of the letters. Judges will hardly ever state explicitly the ratio in the judgment but will bury it among a mass of dicta. therefore does not have to be followed. Used by judges to avoid a previous inconvenient decision. who wants to be the ‘guinea-pig’? Distinguishing Distinguishing A case on its facts. The report may not accurately encapsulate the ratio in the head note to the law report. Discovering the ratio decidendi of a case The ratio decidendi of a case is the principle of law. It was argued that the acronym caused offence not because it is seen as the swear word “f**k” because of wordplay. . Discovering the ratio decidendi A court in a later case and not the judge in the original case determine the ratio decidendi of a case. This line of reasoning was rejected by the Appointed Person. where it was held that the word “FOOK” could be phonetically identical to the word “f**k” and therefore the application was rejected. The reporter may have misinterpreted the decision and attempted to state the ratio too widely or too narrowly. or on the point of law involved. Of a case is often difficult. “FCUK” Trade Mark is not invalid The Trade Mark “FCUK” can be registered by French Connection Limited. It was claimed in an appeal to the Appointed Person that the controversial trade mark was “contrary to … accepted principles of morality” under Section 3(3)(a) of the Trade Marks Act 1994. Old cases are easier because the reporter did not always include mere obiter dicta. The mark will continue to offend a section of society but nevertheless French Connection Limited can continue to benefit from it (if people buy their offending products). This case was distinguished from the “FOOK” case Scranage’s Trade Mark Application 0/182/05. It was so obviously intended to be the swear word that everyone would interpret it as such and therefore was contrary to “accepted principles of morality”.Disincentive to litigate. but because it essentially was the swear word.

the court laid down a wider ratio. and in this way. even if it is a decision of the House of Lords. In this event. owes a duty to the consumer to take that reasonable care. Particularly immaterial was the fact that there was no contractual relationship between the complainant and the defendant. courts have extended the ratio of Donoghue v Stevenson to motorcars. It was not material that the friend in the cafe had bought the ginger beer or that it the friend and the cafe owner poured it into the tumbler. industrial chemicals. a judge may give two or more reasons for his decision in which event they are both or all rationes decidendi and not mere obiter dicta. Three or even five separate judgments may be given. If there is no majority in favour of any one ratio the case loses much of its value as a precedent. In subsequent cases. Lord Simonds "[T]here is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision. and irritant chemicals in underpants. hair dye. Lord Atkin laid down the rule in these words: [A] manufacturer of products. Judges in an appeal can find for the same party for different reasons.Words not necessary for the decision must be obiter. because he has given another reason also. The courts have extended category of persons potentially liable to include repairers." Examples Donoghue v Stevenson [1932] HL What was considered material was the claimant had been injured through consuming ginger beer manufactured by the defendant and bottled in glass through which the contents could not be seen and which contained a dead snail. However. and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property. erectors and assemblers. the ratio decidendi is that agreed by the majority. and may not be considered binding. Only one Law Lord delivers a In recent years only one Law Lord in the House of Lords delivers a speech [note they are not called judgments] to which the other . lifts. which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination. The court made it clear that the ratio was not to be limited to cases involving snails in ginger-beer bottles. Bell v Lever Bros Ltd Despite many subsequent cases its true meaning is still not clear after sixty years.

Law Lords simply agree. or rape etc. as in Bell v Lever Bros. which can result from different reasons contained in multiple judgments.speech to which the other Law Lords simply concur. Denning described the task of distinguishing between ratio decidendi and obiter dicta as 'formidable' and said that.g. occasionally. it is more difficult to distinguish them in a single speech than in multiple opinions. child defendant. parties remain anonymous Typical "In the matter of" Smith Re: Tempest v Jones Probably a deceased person so technically no defendant The Wagon Mound A shipping case is always known by the name of the defendant . Smith v Jones Civil Actions Claimant Pronounced "And" v Defendant R Z Divorce or child involved. Citation In courts of Criminal Jurisdiction Prosecutor Pronounced "Against" v v Defendant Proceedings R "The Crown" R "The Crown" Howe R Typical E. This avoids confusion. task is ‘formidable’. Denning. Ltd. parties are anonymous until conviction (identity is revealed of some children convicted) Proceedings started by summons and not by arrest. if a judge says 'I agree' that means he agrees with the decision and proposed order but not necessarily that he agrees with the reasoning of his judicial colleagues Law reporting. What 'I agree' means In an appeal case. or privately.

b. The law reporting that exists today has simply evolved by private enterprise through three periods of development. Case heard in European Court of Justice European Court of Human Rights House of Lords Privy Council Court of Appeal Queen's Bench Division of the High Court Chancery Division of the High Court Family Division of the High Court Divisional Court of the High Court A Crown Court judgment So we know it is an appeal Usually when a High Court judge is sitting Apellate Committee of Judicial Committee of Criminal or Civil Division Notes Letters in case name ECJ ECHR HL PC CA QBD ChDiv Fam DC Crown Ct n. The "(No 8)" indicates that the matter had been to the House of Lords on 8 occasions. E. The Crown (Criminal) Dates following cases are sometimes in round brackets (2003) or square brackets [2003]. Local Government and the Regions (No 8) [2002] was heard in 2002 but the events occurred over 15 years earlier. There has never been in England any official or systematic attempt at compiling law reports. .ship. Effectiveness depends on the availability of full and accurate reports The effectiveness of a doctrine of precedent based on stare decisis depends in large measure on the availability of full and accurate reports of decided cases. R (Factortame Ltd and others) v Secretary of State for Transport.g. square brackets indicates that the case decided in a year different from the event. • • R= Regina or Rex. "Judgement" is spelt "judgment" by lawyers.

Precedent

Means the process of following earlier cases, also the report of the case itself is called a precedent. The Yearbooks are anonymous reports, compiled annually, and written by hand in French. Some were later printed but most remained in manuscript. The Yearbooks are rarely cited in court now, as they are of no practical use in modern times. They are, however, useful in the study of the medieval common law.

Year Books (about 1275 to 1535)

Private (or named) reports (1535 to 1665)

Individuals, for commercial publication. compiled the private reports. Most of the private reports are referred to by the name of the reporter. They are cited by recognised abbreviations. Thus, the reports compiled by Sir Edward Coke between 1572 and 1616 are known as Coke's Reports, abbreviated to Co Rep. Holt CJ (1704) exemplifies the judicial frustration with bad private reporting: "See the inconveniences of these scrambling reports, they will make us appear to posterity for a parcel of blockheads".

Modern reports (1865 to the present)

The private reports were often criticised. They were expensive to buy. Some of them were never printed and had to be cited in manuscript form. There was too much overlapping in that the same case might be reported in two or more series. Their usefulness to the legal profession was reduced by the inordinate length of time taken to report some important decisions. They were, for the most part, unreliable.

Incorporated Council of Law Reporting for England and Wales.

Because of dissatisfaction with the private reports, a council was established comprising representatives of the four Inns of Court and the Law Society with the Attorney-General and SolicitorGeneral as ex officio members. The council's reports called The Law Reports, were first published in 1865 and eventually absorbed the private reports. In 1870 the Council was incorporated as a company and became known as the Incorporated Council of Law Reporting for England and Wales. Since 1953, the Incorporated Council of Law In the High Court and Court of Appeal if the Incorporated Council of Law Reporting for England and Wales has published a Law Report that counsel which to quote, then they must use that report and only if the Council has not reported it may they use another source.

The Weekly Law Reports (WLR)

Since 1953, the Incorporated Council of Law Reporting for England and Wales has published The Weekly Law Reports (WLR).

All England Law Reports Specialist series of law reports

(All ER) published since 1936 by Butterworths.

Tal Cases (TC or Tax Cas) published by the Inland Revenue and Reports of Patent, Design and TradeMark Cases (RPC) published by the Patent Office. Lloyds Law Reports (Lloyd's Rep).

Stanley v International Harvester co. of Great Britain Ltd (1983) CA [ ] –v- ( )

Sir John Donaldson MR complained about the indiscriminate citing of computer-recorded cases, which contains no new law.

Since 1891, the year of publication of a volume of The Law Reports has appeared in square brackets and is part of the reference to that volume without which a case cannot be traced. Round brackets indicate the year of the hearing.

Smith Bernal

Internet reporting of cases. All courts. CaseTrack.

House of Lords website

House of Lords judgments available on the internet. House of Lords.

Her Majesty’s Courts Service website

Cases the Court Service Website are chosen by the judge for publication. The Court Service.

Paid for by lawyers The Times

Comprehensive searchable linked cases. BAILI. Citable cases found at The Times. Useful recent case summaries Butterworth.

Butterworths legal publishers

Court of Justice of the European Communities Binding nature The European Court is not bound by its own decisions.

of rulings

It binds all European Courts including the House of Lords.

House of Lords London Tramways Ltd v London County Council [1898] The highest appeal court should be final in the public interest, to create certainty in the law. The rule did not produce the desired certainty in the law and it had become too rigid.

The Practice Statement [1966]

"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection, they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property, and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House." Because that decision was wrong. The earlier decision was by a narrow majority. Because that decision has caused grave concern. Issues, which are only of academic interest, will not be entertained A material change of circumstances will usually have to be shown (Fitzleet Estates Ltd v Cherry [1977]; Jones v Secretary of State for Social Services; R v Knuller [1973]. • • • •

Invalid Reasons for review.

Examples of the House of Lords departing from previous decisions and of overruling Conway v Rimmer [1968] Overruled Duncan v Cammell, Laird & co [1942] on discovery of documents. Duncan was decided in wartime and was probably correct on its facts, holding that an affidavit sworn by a government minister was sufficient to enable the Crown to claim privilege not to

disclose documents in civil litigation without those documents being inspected by the court (the so-called 'public interest immunity').

Herrington v British Railways Board [1972]

Overruled (or, at least, modified) Addie & Sons v Dumbreck [1929] In Addie, an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly. In Herrington, they propounded the test of 'common humanity’, which involves an investigation of whether the occupier has done all that a humane person would have done to protect the safety of the trespasser.

Miliangos v George Frank (Textiles) Ltd [1976]

Overruled Re United Railways of the Havana & Regla Warehouses Ltd [1961] In the United Railways case, the court held that courts could only award damages in Sterling in an English civil case. In Miliangos, they held that courts could award damages in the currency of any foreign country specified in the contract. The courts needed a new rule because of changes in foreign exchange conditions, and especially the instability of sterling, since 1961.

Jobling v Associated Dairies Ltd. [1981] Vestey v Commissioners of Inland Revenue [1979]

House of Lords doubted and did not follow its own decision given ten years earlier in Baker v Willoughby [1970].

Overruled its decision in Congreve v Commissioners of Inland Revenue [1948], which had stood for some thirty years. They thought the Congreve case was wrong and it would produce 'startling and unacceptable consequences' when applied to circumstances never contemplated when the court decided it.

Jones v Secretary of State for Social Services [1972] Secretary of State for the Home Department (en

(Decided on the construction of the National Insurance Act held that one of its own decisions of only five years' standing was wrong but they did not overrule it.

On illegal immigration, the House declined to follow its own decision given in a case two and a half years earlier, Lord Scarman: The House must be satisfied on two counts.

in fact. In which the House of Lords overruled within twelve months its own earlier decision in Anderton v Ryan [1985] Lord Bridge (who sat in both appeals) said "I am undeterred by the consideration that the decision in Anderton v Ryan was so recent The 1966 Practice Statement is an effective abandonment of our pretension to infallibility if a serious error embodied in a decision of this House has distorted the law. That continued adherence to the precedent would involve the risk of injustice and would obstruct the proper development of the law. even though to do so produced the illogical result that. Howe was based on a desire to restore this part of the criminal law to what it was generally understood to be prior to Lynch. 2. D was held to be guilty of attempting to commit a drugs offence.parte Khawaja). that these plain words did not mean what they said. Mrs Ryan escaped conviction in spite of the clear words the Act that 'a person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible’. Customs caught him with a suitcase. while duress is a complete defence to all crimes less serious than murder.Not guilty Overruled Director of Public Prosecutions for Northern Ireland v Lynch [1975] the defence of duress is not available to a person charged with murder. That a departure from the precedent is the safe and appropriate way of remedying the injustice and developing the law. the sooner it is corrected the better. R v [1987]. R v [1983] 1. He therefore. She thought the goods were stolen but. whether as a principal in the first degree (the actual killer) or as a principal in the second degree (an aider and abettor)(as it was in Lynch). they said in effect. . they were not. could not have committed the full offence but he was charged with attempting to commit the offence of being knowingly concerned in dealing with and harbouring prohibited drugs. Lord Hailsham. "It may well be thought that the loss of a clear right to a defence justifying or excusing the deliberate taking of an innocent life in Shivpuri. it is not even a partial defence to a charge of murder itself R v Gotts [1992] extended the decision in R v Howe by holding that duress is not a defence to attempted murder. He had intended to commit the full offence and had done acts which were 'more than merely preparatory." Anderton v Ryan on the Criminal Attempts Act 1981 Ryan was not guilty of attempting dishonestly to handle a stolen video recorder. snuff or some other harmless vegetable matter. Shivpuri – Guilty Mrs Ryan . R v [1986] Howe. which he thought contained prohibited drugs whereas it contained dried cabbage. Shivpuri was also on the Criminal Attempts Act 1981.

or to prevent crime. . and bound. R v R (rape: marital exemption) [1991] Whole case here Abolished a husband's 250 year-old immunity from criminal liability for raping his wife. Status of conflicting Lords' decisions When confronted by convicting decisions of the House of Lords the courts are entitled. economic and cultural developments'. By doing so it would reduce murder in such cases to manslaughter.order to emphasise to all the sanctity of a human life is not an excessive price to pay in the light of these mechanisms ." Pepper (Inspector of Taxes) v Hart [1993] Declined to follow dicta in Beswick v Beswick [1968] on the use of Hansard as an extrinsic aid to the interpretation of statutes. One of the passengers was killed. and murder sometimes at least as obscene as anything experienced in Blackstone's day. The car was approaching the checkpoint at speed and did not appear to be going to stop. be it ever so slight. Held: Lord Lloyd. They justified the decision on the basis that the case was not concerned with the creation of a new offence but with their duty to remove from the common law a fiction. . R v [1995] D fired several shots at a car whilst he was on check point duty in Northern Ireland. which had become unacceptable They saw the decision as an example of the ability of the common law to evolve 'in the light of changing social. whilst not averse to judicial law-making citing R v R as a good example of it – said that he had no doubt . to follow the later decision." Lord Griffiths: "We face a rising tide of violence and terrorism against which the law must stand firm recognising that its highest duty is to protect the freedom and lives of those that live under it. of international terrorism on the scale of massacre. Clegg.available to a soldier or police officer acting in the course of his duty . The sanctity of human life lies at the root of this ideal and I would do nothing to undermine it. or to effect a lawful arrest. of the explosion of aircraft in mid air. Clegg was charged and convicted of murder. It was argued that the House should make new law by creating a new qualified defence .of using excessive force in selfdefence.we live in the age of the holocaust of the Jews.

best done by legislation. 2. Should not on the questions of construction of statutes or other documents except in rare and exceptional cases. Lord Lowry discerned in the case law the following guidelines for judicial law making: (a) Judges should exercise caution before imposing a remedy where the solution to a problem is doubtful: (b) They should be cautious about making changes if Parliament has rejected opportunities of dealing with a known problem or has legislated while leaving the problem untouched: (c) They are more suited to dealing with purely legal problems than disputed matters of social policy: (d) Fundamental legal doctrines should not lightly be set aside: (e) Judges should not change the law unless they can achieve finality and certainty Parliament later changed the rule Five are negative two are positive ones: 1. Between l966 and l975 Lord Reid articulated at least seven criteria relating to the use of the Practice Statement . They called upon Parliament to review it. Should not merely because the Law Lords consider that it was wrongly decided. (b) Should not overrule if to do so would involve a change that ought to be part of a comprehensive reform of the law. ought to be exercised sparingly. 4. The freedom granted by the 1966 Practice Statement. 3. There must be some additional reasons to justify such a step. 6. D’s conviction was later quashed on different grounds C v Director of Public Prosecutions [1995] Refused to abolish the rebuttable common law presumption that a child between the ages of 10 and 14 is incapable of committing a crime despite the anomalies and absurdities it produced. (a) Should not overrule if it would be impracticable for the Lords to foresee the consequences of departing from it. 5. and not the courts. Should not to upset the legitimate expectations of people who have entered into contracts or settlements or otherwise regulated their affairs in reliance on the validity of that decision.that they should abstain from law-making in the instant case since the reduction of murder to manslaughter was essentially a matter for Parliament. Should overrule if in relation to some broad issue or principle it is not considered just or in keeping with contemporary social conditions or modern conceptions of public policy. Should overrule if it causes such great uncertainty in practice that the parties' advisers are unable to give any clear indication as to what the courts will hold the law to be. 7.

possibly. "The ability of the common law to adapt itself to the differing circumstances of the countries in which it has taken root. Effectively they were saying Smith was wrong. Judicial Committee of the Privy Council Decisions (technically. So. so a Privy Council decision is very powerful. the House of Lords or the Privy Council? A court of 5 judges was gathered by the Lord Chief Justice and they decided that when there were such conflicting precedents then the PC could be followed. . in other countries subject to its jurisdiction where the law on the particular point is the same. R v [2006] CA Within months of Holley the Court of Appeal was confronted with two conjoined appeals referred to them by the CCRC on the very point raised in Holley. the common law would not have flourished as it has. Nine strong PC decisions will be preferred to HofL Decisions of the Judicial Committee are binding in the country from which the appeal came and. Lord Lloyd. is not a weakness. Not to be taken to mean it is the norm They also ruled that this was not to be taken as a licence to decline to follow a decision of the House of Lords in any other circumstances. Their dilemma was which precedent should they follow." The case of Jersey v Holley [2005] PC was heard by the Privy Council and they had to decide an issue relating to provocation in murder. Were it not so. with all the common law countries learning from each other. but one of its great strengths. James and Karimi. Nine judges sat to decide that the law should be returned to the position before the a case called R v (Morgan James) Smith (2000) HL. 'advice') of the Judicial Committee are not binding on the English courts but they are of strong persuasive authority. in some rare cases the Privy Council decisions are more than persuasive.'Horizontal' Note that we are talking about the "horizontal" effect of precedent in the House of Lords. The judges that sit in the Privy Council are the very same men and women that make up the House of Lords (but not all the same in both these two cases).

• Where to follow a decision of its own which conflicts with a decision of the House of Lords even though its decision has not been expressly overruled by the House of Lords. Court of Appeal were following the intention of the Law Lords " . but the Lords of Appeal in Ordinary who have altered the established approach to precedent. A sixth exception Is the application of the Human Rights Act 1998.) That the Court of Appeal is not bound to follow a decision in an interlocutory matter made by two judges in the Court of Appeal Boys v Chaplin [1968]. . A fourth exception A fifth exception exists In order to give full effect to Community law if one of their previous decisions is inconsistent with Community law. That is not to say that the Court of Appeal should be slow. for that would usurp the function of the House of Lords." Lord Phillips in James & Karimi Court of Appeal (civil division) Lord Asquith in the Court of Appeal said "A trial judge should be quick. The Court of Appeal must decide which to follow and which to reject.Consistent with other ruling This decision was not altogether surprising because the Court of Appeal had followed the Privy Council in R v Mohammed [2005] CA a few weeks earlier.. Ltd [1944] A 'full' Court of Appeal of six members decided that it was normally bound by its previous decisions subject to the following three exceptions: • Where its own previous decisions conflict. it is not this court." On whom binding Decisions are binding on the High Court and the county courts but they do not bind the House of Lords. Young v Bristol Aeroplane co. • Where an earlier decision was given per incuriam (by ‘carelessness’ or mistake’ or ‘manifest slip’ or ‘error'. rude and wrong.. courteous and right. United Kingdom membership of the European Union has not abrogated the doctrine of stare decisis in the Court of Appeal (Duke v Reliance Systems Ltd [1987] CA).

He cannot 'overrule' it but is limited to 'disapproving' or 'not following' it. Conflicting decision of Privy Council and the House of Lords Conflicting decision of Privy Council and the House of Lords R v James and Karimi [2006] CA was decided by an enlarged Court of Appeal which followed a Privy Council precedent rather than an earlier House of Lords precedent. Some judges held that failure to wear a seat belt was not contributory negligence. This disturbs the previous understanding of the rules of stare decisis. in general. It was further suggested that. but can disapprove or not follow Froom v Butcher [1976] CA If a High Court judge feels that he cannot follow a colleague's decision it is always with reluctance and he will usually state his reasons clearly and fully. The case related to the reasonable man test in provocation in murder. This means that when a decision involving English Law and the majority in the Privy Council so decide a Privy Council decision can be preferred. Cannot overrule. The difference of opinion was resolved by the Court of Appeal in 1975 in Froom v Butcher [1976].Court of Appeal (criminal division) In principle. Because someone’s liberty may be at stake. Previously it would have been noted that the Privy Council decision was merely persuasive. now it can be followed. there is no difference in the application of stare decisis as between the civil and criminal divisions of the Court of Appeal (R v Spencer [1985] not overruled on this point by the House of Lords. others held that it was. precedent is not followed as rigidly in the criminal division. Held: failure to wear a seat belt is contributory negligence if use of a belt would have avoided or lessened the injuries sustained in the accident. but is not remarkable in practical terms. High Court Not binding on other High Court Judges Highly persuasive Decisions of individual High Court judges are binding on the county courts but not on other High Court judges. but disagreed about the percentage by which the damages should be reduced. They are of strong persuasive authority in the High Court and are usually followed. . the appropriate reduction is 25 per cent if the injuries would have been prevented altogether by the use of a seat-belt or 15 per cent if they would nevertheless have occurred but would have been less severe.

Lord Diplock has warned of the 'danger of so blinding the court with case law that it has difficulty in seeing the wood of legal principle for the trees of paraphrase' The House of Lords has decided that it will not allow transcripts of unreported judgments of the Court of Appeal.appellate divisions of the High Court Normally bound by own decisions Crown Court Crown Court can only create precedent when a High Court judge is sitting Crown Court judges rulings on points of law are persuasive authority (unless made by judges of the High Court sitting in the Crown Court). Ltd [1944]. It is also normally bound by its own previous decisions but subject to the same in Young v Bristol Aeroplane co. County courts and magistrates' courts The decisions of these courts are not binding They are rarely important in law and are not usually reported in the law reports. Since inconsistent Crown Court decisions may produce uncertainty in the criminal law it is desirable that an appellate court resolve any conflict as quickly as possible. There is no obligation on the part of other Crown Court judges to follow them. to be cited before the House except with its leave. The convenience of following precedent should not be allowed to degenerate into a mere mechanical exercise performed without any thought. are not binding precedents. Advantages and disadvantages of the doctrine of judicial precedent Convenient timesaving device Can become thoughtless If a problem has already answer and been solved it is natural to reach the same conclusion.Divisional Courts . It may also allow persons generally to order their affairs and come . civil division. Greater certainty in the law Is perhaps the most important advantage claimed for the doctrine of judicial precedent. Too many precedents The citation of authority in court should be kept within reasonable bounds because it can be costly in terms of time and money.

It is based on the experience of actual cases brought before the courts rather than on logic or theory. which he must follow unless it is distinguishable. Practical character Case law is practical in character. Ensures impartiality of judge The interests of justice also demand impartiality from the judge. The courts can more quickly lay down new principles. flexibility and certainty are incompatible features of judge-made law. This may be assured by the existence of a binding precedent. Limits development of the law The doctrine of stare decisis is a limiting factor in the development of judge-made law. In any event. If he tries to distinguish an indistinguishable case his attempt will be obvious. which could not be provided by Parliament. It would be undesirable to treat a number of claimants unjustly simply because one binding case had laid down an unjust rule. It would be unjust to reach a different decision in a following case. or extend old . Offers opportunity to develop The making of law in decided cases offers opportunities for growth and legal development. Avoids mistakes The existence of a precedent may prevent a judge making a mistake that he might have made if he had been left on his own without any guidance. Causes injustice The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it. Practical law is founded on experience but the scope for further experience is restricted if the first case is binding. Precedent may produce justice in the individual case but injustice in the generality of cases. Mistakes perpetuated Judicial mistakes of the past are perpetuated unless bad decisions happen to come before the House of Lords for reconsideration.to settlements with a certain amount of confidence. Too confusing Prevents injustice However. The doctrine of precedent may serve the interests of justice. A system that was truly flexible could not at the same time be certain because no one can predict when and how legal development will take place. the advantage of certainty is lost where there are too many cases or they are too confusing.

Centralised nature of English Law means it is easier to follow Following of precedent is easier in England than in many other countries because England has a centralised legal system with only a small number of courts. Unless it can be distinguished he must follow it. However. There has built up over the centuries a wealth of cases illustrative of a vast number of the principles of English law. | Cases precedent. Secondly He claimed that the Court of Appeal was no longer bound to follow its own decisions as a general rule and not just in the exceptional circumstances laid down in Young v Bristol Aeroplane . His discretion is thereby limited and the alleged flexibility of case law becomes rigidity. The cases exemplify the law in the sort of detail that could not be achieved in a long code of the Continental type. even though he dislikes it or considers it bad law. here | L in k B a r 0 The Denning story The attack was on two fronts Lord Denning MR carried on a one-man campaign to secure a change of practice in the Court of Appeal of Appeal. First He asserted that the House of Lords decisions no longer bound the Court of Appeal. Its very bulk and complexity make it increasingly difficult to find the law. to meet novel circumstances. therein lies another weakness of case law. Flexible The case-law method is sometimes said to be flexible.the law principles. A judge is not so free where there is a binding precedent.

Ltd reached the House of Lords. This is the very case in which to throw off the fetters. We are not considering its use elsewhere. Lord Denning understood (or misunderstood) the last words of the Practice Statement to mean: Conway v Rimmer [1967] CA "We are only considering the doctrine of precedent in the Lords.. Denning repentant? Denning follows up his attack Schorsch Meier GmbH v Hennin [1975] He held he could award damages for breach of contract in a foreign currency that was the currency of the contract. the Law Lords castigated the Court of Appeal for its disloyalty. Ltd because the court ordered Commander Broome to pay part of the costs of the hearing in the Court of Appeal.. Ltd. I do not agree.. and I hope it will never be necessary to say so again. They based the refusal on the ground that Rookes v Barnard was wrong and decided per incuriam.Co. it is necessary for each lower tier. Laird & Co. "[M]y brethren today feel that we are still bound by the observations of the House of Lords in Duncan v Cammell. this was not the precedent of the lords in Re United Railways of the .. on the principles for the award of exemplary damages in tort." Lord Denning said. Broome v Cassell & co. in one of his books. Ltd [1971] CA C of A refused to follow the decision of the House of Lords in Rookes v Barnard [1964]. Lord Hailsham said "[I]t is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way and. The recent statement of Lord Gardiner LC has transformed the doctrine of precedent. to accept loyally the decisions of the higher tiers. including the Court of Appeal. in the hierarchical system of courts which exists in this country." Denning.. The fact is.." When Conway v Rimmer reached the House of Lords [1968] they reconsidered Duncan's case and overruled it. it would be highly undesirable . expressed regret for the approach he adopted in Broome v Cassell & co. in ignorance of two previous decisions of the House. if it were open to the Court of Appeal to do so. that. When Broome v Cassell & co. but it was made clear that Duncan's case had been binding on the Court of Appeal all along. Ltd [1944].

The second front of Lord Denning's attack Gallie v Lee [1969] "I do not think we are bound by prior decisions of our own. Ltd. but . not all of them—to agree with this view. It was a self-imposed limitation: and we who imposed it can also remove it. but their decision enjoys no greater authority than a court composed of three. there would be a risk of confusion and doubt arising where there should be consistency and certainty. needs this power of review: it does not follow that an . not absolutely bound. at any rate. It is not for any inferior court—be it a county court or a division of the Court of Appeal presided over by Lord Denning —to review decisions of this House. an intermediate position in our legal system. It sits almost always in divisions of three: more judges can sit to hear a case." Was to assert that the Court of Appeal was no longer bound rigidly to follow its own previous decisions. Lord Cross "In the Schorsch Meier case. or at any rate." Scarman LJ "The Court of Appeal occupies a central. [T]he Master of the Rolls was not entitled to take such a course. throwing aside the restraints of Young v Bristol Aeroplane co. . one division of the court should refuse to follow another because it believed the other's decision to be wrong. took it on himself to say that the decision in the Havana case that our courts cannot give judgment for payment of a sum of foreign currency—though right in 1961—ought not to be followed in 1974 because the 'reasons for the rule have now ceased to exist'. Such a review can only be undertaken by this House itself under the declaration of 1966. The House of Lords have done it. therefore.. yet to persuade my brethren— or.. . . as the court of last resort. The House of Lords. The Schorsch Meier case did not go to the Lords Miliangos v George Frank (Textiles) Ltd [1976] HL Overruled United Railways and again put Denning in his place on stare decisis. however. If.Havana & Regla Warehouses Ltd [1961] that laid down that damages could be awarded only in sterling. So why should not we do likewise?" Not all his brother judges agreed with him. but added "I have not been able.. . To a large extent. the consistency and certainty of the law depend upon it. The appropriate forum for the correction of the Court of Appeal's errors is the House of Lords. Lord Denning MR . where the decision will at least have the merit of being final and binding—subject only to the House's power to review its own decisions. We are not fettered as it was once thought. Tiverton Estates Ltd v Wearwell Ltd [1975] Denning repeated the view he had expressed in Gallie v Lee.

while this court should regard itself as normally bound by a previous decision of the court. lived together with their baby daughter in a council flat of which the parties were joint tenants. perhaps forever. Denning called together a 'full' court of five judges." Later in his judgment. The woman fled with the child to a battered wives' refuge.. not married to each other. They declared B v B and Cantliff v Jenkins wrong did not follow them. She applied to the court to reinstall her and have the man excluded from the flat. The parties. Whenever it appears to this court that a previous decision was wrong. So that I am in duty bound to defer to their view. we should extend the exceptions in Young v Bristol Aeroplane co.intermediate appellate court needs it. The court held by a majority of three that the 1976 Act does protect a female cohabitee even where she is not a tenant at all or only a joint tenant. it seems to me that. we should be at liberty to depart from it if we think it right to do so. in my opinion. There was violence by the man. Alternatively. nevertheless it should be at liberty to depart from it if it is convinced that the previous decision was wrong. Ltd when it appears to be a proper case to do so. "On principle.. Denning was more specific: "To my mind. The Court of Appeal had considered the same question on two occasions only a few months earlier in B v B [1978] and Cantliff v Jenkins [1978]. On the question of stare decisis in the Court of Appeal Denning had this to say." On domestic violence and Matrimonial Proceedings Act 1976. this court should apply similar guidelines to those adopted by the House of Lords in 1966. What is the argument to the contrary? It is said that if an error has been made." Had Denning learnt his lesson? He capitulated and accepted the orthodox view in Miliangos v George Frank (Textiles) Ltd [1975] "I have myself often said that this court is not absolutely bound by its own decisions and may depart from them just as the House of Lords from theirs.." He said that Young's case was binding on the Court of Appeal but he would like to see a further limited exception to it: Davis v Johnson [1979] Sir George Baker was even . In Davis v Johnson. The answer is this: the House of Lords may never have an opportunity to correct the error. They held that the 1976 Act did not protect a female cohabitee where the parties were joint tenants or joint owners but only where she was the sole tenant or sole owner of the property. but my colleagues have not gone so far. and thus it may be perpetuated indefinitely. They granted an injunction to order the man out and reinstall the woman. this court has no option but to continue the error and leave it to be corrected by the House of Lords. describing it as 'a court of all the talents'.

had confined rape to sexual intercourse "outside the bounds of matrimony"." However. Ltd [1944]. First. said: "[T]he rule as it had been laid down in the Bristol Aeroplane case had never been questioned thereafter until. Sir Stephen Brown P. keeping wives in legal sexual slavery." But after Davis v Johnson it is beyond doubt that the true position concerning stare decisis in the Court of Appeal is that.more inventive and precise "I would attempt to define the exception thus: 'The court is not bound to follow a previous decision of its own if satisfied that that decision was clearly wrong and cannot stand in the face of the will and intention of Parliament expressed in simple language in a recent statute passed to remedy a serious mischief or abuse. . the Court of Appeal is bound by decisions of the House of Lords even if they are wrong. and one judge after another has maintained the legal fiction. and further adherence to the previous decision must lead to injustice in the particular case and unduly restrict proper development of the law with injustice to others. delivering the judgment of the court (Lord Lane CJ. On a further appeal. Lord Lane CJ. and. unequivocally and unanimously that the rule laid down in the Bristol Aeroplane case as to stare decisis is still binding on the Court of Appeal. In my opinion. Lord Diplock. Neill. taking the same view. as a one-man crusade with the object of freeing the Court of Appeal from the shackles which the doctrine of stare decisis imposed upon its liberty of decision. following upon the announcement by Lord Gardiner LC in 1966 that the House of Lords would feel free in exceptional cases to depart from a previous decision of its own. Secondly. and Russell LLJ). a seventeenth century witch-hunting judge. the decision of the majority in the Court of Appeal was upheld and the House of Lords overruled B v B and Cantliff v Jenkins Denning has described this decision as his 'most humiliating defeat' and a 'crushing rebuff' Marriage entails irrevocable consent to sexual intercourse R v R (rape marital exemption) [1991] HL Sir Matthew Hale. l hope without offence. Lord Denning MR conducted what may be described. The court must choose between the "literal solution": that the 1976 Act by making unlawful sexual intercourse a necessary element of rape. the Court of Appeal is bound by its own decisions subject only to the exceptions laid down in Young v Bristol Aeroplane co. and Watkins. stated-in a hook not even a judgment-that marriage entails irrevocable consent. their Lordships rejected most of what the Court of Appeal had said about stare decisis. this House should take this occasion to reaffirm expressly.

with whom the other members of the House (Lord Brandon of Oakbrook. The nature of the doctrine of judicial precedent The doctrine of judicial precedent operates where no statute applies to a particular legal issue. The Doctrine of Judicial Precedent The heart of the common law as a legal source is the doctrine of precedent or stare decisis. Binding principles are more important because they allow the preservation of case law principles. When there is no statutory law the judge will consider case law. In the view of the court the "radical solution" was preferable: "This is not the creation of a new offence. Lord Griffith Lord Ackner.'' that the word is to be construed in such a way as to leave intact the exceptions to the husband's immunity which have been engrafted onto Hale CJ's proposition from R v Clarke onwards and is also to be construed so as to allow further exceptions as the occasion may arise" and the "radical solution" that Hale's opinion was not law." Lord Keith of Kinkel. those principles are called judicial precedents. It gives the process impetus and scientific rationale. repeated with approval in dismissing the husband's appeal to the House of Lords.The "compromise solution. for forcible sexual intercourse was invariably unlawful. and "if the mind of the draftsman had been directed to the existence of the exceptions he would surely have dealt with them specifically and not in such an oblique fashion. . The literal translation of stare decisis is ‘let the decision stand’. and Lord Lowry) agreed. This doctrine provides for the development of common law on a case-bycase basis. Specifically." The word "unlawfully" in the definition of rape was surplusage. it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it. To hold "unlawfully'' to mean "outside marriage" … would be to give it a meaning peculiar to the subsection. the judge will consider cases decided previously on the particular issue. He will look at the principles contained in such cases.

Precedents from Commonwealth Caribbean jurisdictions and the UK are highly persuasive in the region. Obiter dicta may form the basis of persuasive precedents. precedents from the USA. Ag and Another the Court of Appeal in Trinidad and Tobago commented on the shared heritage that existed between it and Jamaica. was one of the first to make a pronouncement on the doctrine of stare decisis. amongst the similarities was a “common history and jurisprudence …” Because the similarities that exist between our constitutional instruments. The case of London Tramcars Co. Because the rationale behind the doctrine of binding precedent is that judges do not create law.” The opposite of binding precedents are ‘persuasive precedents’. Judges are therefore bound to apply the legal principles of binding precedent. Ltd v. It may also originate from other jurisdictions. India and the European Court of Human Rights are highly persuasive in .Therefore judges will decide cases in conformity with existing rules. In that case. Persuasive precedents may originate from lower courts in the hierarchy within a jurisdiction. For example a decision from the Court of Appeal in Trinidad and Tobago is only persuasive authority to a court in Jamaica. Lord Halsbury stated that “… a decision of this House once given upon a point of law is conclusive upon the House afterwards and it is impossible to raise the question again as it was res integra and could be re-argued. They use the existing rules to guide them in making decisions. For example in Boodram v. which only offer guidance. Persuasive precedents are legal principles contained in judgments. These precedents are not binding even though the judge will refer to them. London County Council. Canada.

constitutional matters. . 1. In the Commonwealth Caribbean the highest court is the Judicial Committee of the Privy Council. This legal principle or rule of law is known as the ration decidendi. The hierarchy of courts The doctrine of judicial precedent cannot work if there isn’t a system of hierarchy of courts. Concepts Important to the Doctrine of Precedent The following are essential to an understanding of the doctrine of judicial precedent. will determine the degree of persuasiveness of a precedent. The jurisdiction from which a precedent emanates and the status of the court. After the Privy Council is the Courts of Appeal. The rule is that each court is bound by the decision of a court above it. The ratio decidendi The only facet of a decision that is binding on a judge is the legal principle or rule of law contained in that decision. Also when cases involve socioeconomic matters. Sometimes. The decisions of that court therefore have the most authority. precedents from other developing countries with a common law legal system are usually viewed as highly persuasive. The last courts in the hierarchy are magistrates’ courts and judicial courts. which makes the decision and its date. Sometimes a court is bound by decisions of a court of equivalent status. then High Courts or Supreme Court of Record and intermediate courts such as the family court and resident magistrates’ courts of Jamaica. the reputation of the judge will influence a court.

The reason is the case may be decided on only one of the grounds argued. Fletcher “…did not apply to the escape of dangerous substances from the defendant’s control. more than one reasons given for the decision. The adjudicated matter will bind the specific parties in the particular case. The second was that the rule did not apply unless the plaintiff had an interest in land affected by the escape. Essentially therefore.” It is important to distinguish the ratio from a finding of fact and from the judgment.A case may contain several ratio decidendi. Subsequent parties are not so bound. Lyons and Co. which are ‘by the way’. The deciding argument will be binding. very important to distinguish statements of law. Ltd one of the ratio decidendi in that case was that the rule in Rylands v. But it is still possible to have more than one ratio. Therefore the res judicata simply means that the matter has been determined once and for all. “The ratio decidendi may be defined as the statements of the principles of law applicable to the particular legal problems disclosed by the facts. Even if a subsequent case before the courts appears to be factually identical. 2. The ratio must also be distinguished from the res judicata or the adjudicated matter. Take for instance the case of Read v. The judgment is a combination of legal reasoning and the facts of the case. For example. it is difficult to isolate the ratio.” If the case is argued on more than one ground. the ratio is the legal reason which the judge gives for the decision he arrives at in a particular case. or obiter dicta. There are different . it is important to distinguish the ratio decidendi that is relevant to the subsequent case. the judge or jury may not necessarily come to the same conclusions as was arrived at in the earlier case. In comparison the ratio binds all subsequent courts. Obiter dicta It is very.

Heller and Partners Ltd. Bristol Aeroplane Co Ltd. For example legal principles. For example. The exception was if the listener protected himself with a disclosure. However this does not always affect the doctrine of precedent. if it had been considered. . if it was satisfied that a judgment was given per incuriam. The defendant had protected himself with a disclaimer so the principle could not be contained in the ratio decidendi. Remarks such as judicial pronouncements or comments on non-legal matters like morals or public policy. a statement of law that is related to facts. Statements of law made per incuriam Per incuriam literally means through a ‘lack of care’. even if he says that the hypothesis is relevant. will be obiter dicta.categories of obiter dictum. So if a judge compares the facts of the case to another situation. That will be the case even if the statement is based on relevant facts. This principle was developed in the leading case of Young v. Such relevant material includes statutory provisions relevant legal principles or precedents. A Court of Appeal is not bound to follow its’ own previous decision. was not brought to the court’s attention. which are cited in dissenting judgments. which could have affected the outcome of the case. which were not material or in fact did not exist. Ltd v. This occurs when relevant material. If a judge makes other remarks these may also be obiter dicta. it is still obiter dicta. or where the decision is different from the reasoning due to a particular fact. the chief legal principle was obiter because the only exception to that rule had occurred in that case. If a statement does not form the basis of a decision it will be obiter. For example in Hedley Byrne and Co. The legal principle was that the maker of a statement owes a duty of care to the listener.

Some ways of avoiding binding precedents are: 1. This mechanism is important to the preservation of the common law. It also deprives the region from contributing to the development of common law. The lack of adequate law reporting in the Commonwealth Caribbean is a serious problem. Avoiding Precedent – The Promotion of Flexibility The common law is able to remain flexible because the courts are able to avoid precedents in certain circumstances. 2. This as a result. leads to inaccurate legal reasoning. overruling.The per incuriam principle has affected only a few decisions. Decisions are only considered to be per incuriam because of forgetfulness. that can cause problems as well. In certain exceptional circumstances it will actually overrule its’ own decisions. We lose this opportunity because judges from all common law jurisdictions look to other jurisdictions for helpful precedents. ignorance or inconsistency in statutory provisions or binding authority. The importance of law reporting The doctrine of precedent depends on an efficient system of law reporting because legal principles are located in decided cases. This is the reason important cases are published in ‘law reports’. the doctrine may be applied. prospective overruling. . However if the law reporting system is too efficient. If a case has not been fully argued or if it seems as though the court has misunderstood law or is unaware of relevant policy considerations. Because then the wealth of material becomes overwhelming. which are considered to be inaccurately decided. They will do this to change judgments. For instance the Supreme Court can overrule the decisions of inferior courts.

A decision may be overruled by statute or by a higher court. distinguishing precedent. Prospective overruling This does not occur in England or the Commonwealth Caribbean. reversing a decision. it affects the rule of law. the legal principle in the overruled case will be treated as though it never existed. Courts are also not bound to follow obiter statements. 6. It does not just affect the case that is overruled. in the interim they cannot be treated as authoritative. 5. This method is not popular since judges seldom give judgments. “This means that the court applies the earlier decision to the case before them but overrule in so far as it may affect future cases”. per incuriam & obiter statements. It is an American practice that some common law jurists believe should be extended to the Common Law Tradition. and first impression decisions. which do not accurately reflect the law. The US Supreme Court has evoked the authority to overrule decisions prospectively.3. Although in future cases obiter dictum may become ratio decidendi. because overruling works retrospectively. Distinguishing precedent . 4. When this happens. Per incuriam and obiter statements Courts are not bound to follow earlier decisions where the previous decision was reached per incuriam or through lack of care. Overruling Courts are reluctant to overrule precedents.

It is only the particular case that is affected. When a decision is altered on appeal. Counsel will assist the court in this process. these run contrary to the [rationale] of the doctrine of precedent. for here. Reversing a decision Reversing a decision is completely different from distinguishing a decision.“The process of distinguishing is perhaps the principle means by which judges employ to evade judicial authorities which they consider inappropriate to enable the doctrine of precedent to be flexible and adaptable”. the judge is required to create law rather than to apply it. and to allow the application of a different rule of law. In strict theory. First impression decisions “Change in the common law can also occur where there is an absence of a precedent on a particular legal issue. In the later case the judge will be expected to justify why the distinction was such as to necessitate the departure from the precedent. In such circumstance the judge must create a precedent in accordance with general principles.” Advantages and Disadvantages of the Doctrine of Judicial Precedent . it is said to have been reversed. which has caused the process to become very artificial. In other words it affects the entire body of law. Such cases are described as cases of first impression. it does not have to be applied whether it is binding or persuasive. In comparison. However there are critics who hold the view that the practice of distinguishing precedent is now very narrow. overruling affects the rule of law or legal principle upon which the decision is based. If a precedent can be distinguished on the facts. To distinguish a precedent there must be a material difference in the facts of the precedent and the current case.

This is the most serious disadvantage of the doctrine. This was the case in Miliangos v. So if a higher court overrules a lower court. it was to do so in sterling. George Frank (Textiles) Ltd. . The location of legal principles is difficult because of the volume of reported case law. he merely finds the correct statement of law and declares it.The doctrine of judicial precedent has the advantage of legal certainty. Hence the House of Lords overruled its own previous decisions to the effect that when the court quoted judgment debts. It causes rigidity within the legal process. Some disadvantages are: 1. The process of distinguishing precedent gives rise to the danger of illogical technical distinctions. Courts will only overrule a precedent if it is clearly wrong. it was found that the House of Lords were not free to override its own decisions. The Declaratory Theory and the Overruling of Precedent – New Developments Courts are very cautious about overruling precedents. In Gallie v. 3. This means that the common law cannot be changed it can only be restated correctly. 2. The reasons are it will affect certainty in the law as well as disrupt financial agreements. which can lead to the absurdity and excessive legalism. The declaratory theory assumes as fact that the rules of common law have existed from time immemorial. Therefore the judge does not create or change the common law. Lee. it will be on the grounds that the law had been misunderstood. The reluctance to overrule is closely connected to the declaratory theory of the common law. even though it had given itself the ability to do so.

However this precedent has been discredited. Kitts and Nevis v. and has been followed. the House of Lords. it will be as though the incorrect legal principle had never been stated. Other jurists view the role of judges as partly declaratory and partly innovative. HL. Even though the declaratory theory has been promulgated for years. The liberal attitude to overruling precedent was seen in Pratt and Morgan. the highest court in the region – or the Caribbean Court of Justice when it comes into being – will follow it. Here the Privy Council overruled its own decision in Riley. Reynolds. So judicial overruling operates prospectively. Ergo law must have been created throughout history. “declared that they would in future depart from their own decisions when it appeared right to do so”. Consequently jurists question whether the doctrine of precedent is appropriate to modern times. Because in Practice Direction (Judicial Precedent) [1966] 1 WLR 1234. It found that it was cruel and inhuman punishment. as well as restrict the development of the law. 17 of the Constitution of .” This was supported in AG of St. In London Street Tramcars the House of Lords found that the decisions bound all other courts as well as itself. This practice direction is regarded as having the force of law. There is authority for this in the case of Jones v. Their Lordships said that injustices could result from rigid adherence to precedent. it is not accepted that judges do not create law. Lord Wright has questioned how the laws that served during feudal times could have served until and during the nuclear age. and because it represents an important philosophical change for all superior courts in the region. “The implication of the new direction of overruling precedent is equally important for the Commonwealth Caribbean. SOS for Social Services.When the lower court is overruled. as prohibited under s. both because of the Privy Council.

This would apply to a Privy Council decision in the Commonwealth Caribbean. this could not happen in relation to the upper tiers. only sparingly. The Hierarchy of Courts and Courts of Appeal “The Court of Appeal in the Commonwealth Caribbean is bound to follow the decisions of the Privy Council. a Court of Appeal is bound to refuse to follow its’ own decision.” Within this hierarchy there have been tensions as illustrated in Cassell and Co. They are: 1. It will be bound even if that conflicting decision has not been expressly overruled.Jamaica to unduly delay the hanging of prisoners on death row. If a decision conflicts with the decision of a higher court. Lord Halsham was noted for saying that the Court of Appeal had “… to accept loyally the decisions of the higher tiers”. When the pending Court of Justice is constituted. However the power to overrule a precedent is still exercised. Ltd v. That case also established that even though it is possible to depart from conflicting decisions within the tier of the Court of Appeal. Bristol Aeroplane Co. . Broome. The case also established three instances when the court is not bound. 2. and in England the House of Lords. Ltd. The decision that is not chosen is viewed as overruled. Courts of Appeal in Party States will similarly be mandated to follow this final superior court. Generally Courts of Appeal are bound by their earlier decisions. A Court of Appeal can choose between conflicting authorities. This was established in Young v.

3. PC St. the court will not consider itself bound by its previous decisions in a criminal matter where this would cause injustice to the appellant. that the Court of Appeal should be bound by its own decisions on the question of law. So that Caribbean Courts of Appeal in criminal cases will not bind themselves to previous decisions. a Court of Appeal. Bookers Demerara Sugar Estate Ltd. Bristol Aeroplane Ltd. save for the exceptions specified in Young v. This distinction between civil and criminal decisions is accepted and followed here in the Commonwealth Caribbean. But in the region. In AG of St.” The reason for this rule is that criminal matters involve the liberty of the subject. “Primarily. The Guyanese Court of Appeal is the forerunner in this regard. This rule has also been extended to the criminal jurisdiction of the Supreme Courts in the first instance. The Commonwealth Caribbean adheres to this view. A Court of Appeal is not bound to follow a per incuriam decision.” In regards to the doctrine of precedent. Kitts and Nevis v. precedents may not always bind the criminal division from other decisions of the court. in a civil case can correct its own error. for this occurred in Munisar v. In this case the Guyanese Court in an . its correction would be the responsibility of a final appellant court. Kitts & Nevis the court was of the view that it was: “… most important in the public interest. If a Court of Appeal gave a defective judgment. Reynolds . Regardless of whether these decisions are from Courts of Appeal from other jurisdictions or from pre-independence courts. a distinction has to be made between criminal and civil proceedings in the Court of Appeal. in exceptional circumstances. The court is given the discretion to decide in such serious circumstances.

employment law case. and treat then as binding. High Courts The judgments of High Courts are first instance decisions. a decision from one High Court is not binding on another High Court judge. the question is open. “Until the pending Caribbean Court of Justice outlines its own policy on binding precedent. Nonetheless. It will only review decisions if a new point of law has arisen. . If there is a conflict the latter decision is to be preferred. AG of the Bahamas. High Courts or Supreme Courts and all other lower courts. But the Privy Council is reluctant to depart from previous decisions. technically. the Bahamas Lord Steyn reminded the Privy Council that there were no binding precedents that required them to decide a narrow question one way or the other. Therefore. The decisions of the Privy Council must be followed by Courts of Appeal. For instance in Fisher v. departed from an established principle because the previous decision would cause injustice. at least those from their own jurisdiction. Decisions of the Privy Council The Privy Council will not consider itself bound by its previous decisions because it does not operate according to the pure theory of precedent. When two Privy Council decisions conflict the lower court can follow the decision it finds more convincing. it is likely that it will operate along similar lines to the Privy Council and allow itself the greatest flexibility in coming to a decision”.

In each Commonwealth Caribbean state this is not a problem. . because magistrates’ courts are the last in the hierarchy of courts.” Problems in the Hierarchical Structure of Courts The doctrine of precedent needs a hierarchical court system in order to work well. the doctrine may not always operate in the way in which it was intended.In the Caribbean we follow this rule to ensure certainty in the law. Decisions from Magistrate’s Courts Decisions emanating out of magistrate’s courts are not significant in the doctrine of precedent. This principle was declared by Denning in Minister of Pensions v. In practice the decision of a High Court judge is persuasive. if it was reached after full consideration of the earlier decisions. A High Court decision is binding on all inferior courts including magistrate’s courts and tribunals. Magistrate’s courts do not bind themselves to their own decisions. But when the region is considered as a whole. If there is a conflict the latter decision is to be preferred. but they are expected to be judicially consistent. One reason is these decisions are rarely reported in law reports. Higham. This is due to the peculiarities in the region’s legal systems which relates both to structure and outlook. the legal systems of the Commonwealth Caribbean adhere to the strict theory on the doctrine of judicial precedent. High Court judges do not like departing from precedents given by other High Court judges. Furthermore these precedents would not bind any other court. clarity is lost. The Caribbean Perspective – Difficulties in the Operation of Precedent “While in theory. so it would be difficult to locate the judicial precedent.

In addition we share political. The defining authority for this is Hanover Agencies v. 103). such as the Court of Appeal of the Organisation of the Eastern Caribbean States (OECS) or the defunct Federal Supreme Court? Added to the problem is that. and was a distinct and separate body even though the jurisdiction and powers of the former Court of Appeal . It stated that the court was established as a superior court of record by the Constitution (s. sociological and economic similarities as well as CARICOM – in other words. The reason courts view pre-independence precedents in this way is because of the different constitutional status of the two courts as well as the principle of ‘judicial comity’. how should we treat judgments from sub-regional courts and previous regional courts. due to a shortage of human resources. The complexity of the above issues is compounded when we consider the inadequate system of law reporting in the region. This promotes unity.With the exception of Guyana. Marie Belle Antoine feels that “the approaching Caribbean Court of Justice will not automatically resolve those difficulties”. So it is not easy to say which courts will bind which. In the Hanover case the Court of Appeal of Jamaica declared that it was not bound by the decisions of the former Court of Appeal. but it also causes confusion because it is not easy to reconcile the status of decisions emanating from the hierarchy. Pre-Independence Courts The precedence from pre-independence courts is persuasive rather than binding. Income Tax Commission. all Commonwealth Caribbean Courts share the Privy Council as their final Court of Appeal. the same judges man both the High Court or Supreme Court and the Court of Appeal. Judicial comity means the respect courts of equal status accord to each other. For example do the decisions of pre-independence courts bind modern day courts? In addition to this. This fact gives rise to a psychological relationship between those courts. we share an identity.

Sub-regional Courts Academically decisions from sub-regional courts are more problematic. Students are reminded that Guyana abolished the Privy Council as the court of last appeal. The court went on further to say that it would “… always regard the decision of the former Court of Appeal with the greatest respect and as being of strong persuasive authority. But if the court was treated as sitting in several jurisdictions. The former approach seems more correct. 2. the decisions would be treated as binding. Raghubar.were vested in it (s. when the Court of Appeal of Jamaica was newly constituted. This was held in the case of Aziz Ahamad v. The OECS is different from the Privy Council because it was constituted deliberately and formally as a regional court. A court sitting in several Jurisdictions. and Caribbean judges were perhaps not yet accustomed to their newfound freedom. Decisions from other Caribbean Courts of Appeal Decisions from other Courts of Appeal in the Commonwealth Caribbean are persuasive and not binding authority. then their decisions would be merely persuasive. Decisions of the Privy Council . 8 Judicature (Appellate Jurisdiction) Law 1962). The OECS Court of Appeal treats them as binding. In practice the status of decisions do not cause difficulties. or A separate Court of Appeal for each jurisdiction. Regional courts can be treated as either: 1. it was decided during the period just after independence. The Hanover case was seminal. If sub-regional courts are treated as a separate Court of Appeal for each jurisdiction.

the Trinidad and Tobago Court of Appeal was faced with four conflicting precedents. The Privy . R. They were a Privy Council precedent from Jamaica. discussed above”. R. there is support for the view that a Court of Appeal of the region could refuse to follow the precedent. R and was the correct one. But if the decision is felt to be wrong. In R v. “A Privy Council decision from another jurisdiction is sufficient to allow a Court of Appeal to depart from its own previous decision. English precedents. a Jamaican case. the decision “supports the proposition that Privy Council decisions may bind other courts which share its’ jurisdiction even if they are geographically outside the region …”.Privy Council decisions originating from one Commonwealth Caribbean jurisdiction will usually bind other jurisdictions in the region. This is a deviation from the rule that a Court of Appeal should not so depart. regardless of where it originates. The court decided that the Jamaican Privy Council decision overruled Johnson v. For example in Williams v. Commonwealth Caribbean courts rarely deviate from Privy Council decisions. The Relationship between Caribbean Courts and English Courts The doctrine of precedent operates on the assumption of a hierarchy of courts. Singh. The Guyanese Court of Appeal is not bound by Privy Council decisions as appeals to the Privy Council have been abolished. The justification for this approach is to promote uniformity I the common law world. seems like a relic from colonial rule it is a modern day issue. Even though the notion that a Privy Council decision from one jurisdiction can bind another. With the exception of Guyana. precedents from other common law jurisdictions and its own previous West Indian decision of Johnson v.

” Under the pure application of the doctrine of precedent there is no justification for the Privy Council to treat House of Lords decisions as binding. which the Privy Council had followed is wrongly decided. “The Privy Council has ostensibly acknowledged House of Lords decisions as binding. it may be legitimate for a Caribbean court to ignore the Privy Council decision and follow that the House of Lords. (ii) the House of Lords has adverted to and indicated where in lay the error of the earlier decision. where the Court of Appeal viewed the English decision of Karuma.Council is the apex of the judicial system of the Commonwealth Caribbean. Caribbean courts are in turn bound. Because the House of Lords is not apart of the Commonwealth Caribbean hierarchy of courts. and .” Jamaica Carpet Mills is an example of such an opinion. which was viewed as being the authoritative precedent on the question and point of ‘common law’. R thus presuming a nexus between itself and the House of Lords. a Jamaican case. R. But the Privy Council has violated this philosophy by adopting decisions of the House of Lords as the basis of it judgments. As a result the court felt justified in not following a conflicting but corresponding Privy Council decision. “Where a decision of the Privy Council conflicts with a later decision of the House of Lords which expressly states that the earlier decision. Here the Court of Appeal of Jamaica decided the case according to a House of Lords decision . The court said that a House of Lords decision could be followed to the exclusion of a Privy Council decision when: “(i) a point of positive law (that is the common law) has been settled by the decision. as seen in Abbot v. The practice was also demonstrated in the case of King v.

2. This curtails the development of West Indian jurisprudence. because English common law bind Caribbean Courts. this means that we in the Caribbean are bound by the House of Lords decisions because it is the most authoritative court in the English common law system. or development of the common law. local circumstances and custom will work against acceptance. it would be bound to respect the later decision of some of its members sitting in another place”. Logically and according to the strict theory of judicial precedent.(iii) if the matter were to come up before the Privy Council. which belong to the common law world. all jurisdictions. and shape West Indian law. contribute to the Rose-Marie Belle Antoine asserts that the declaratory theory is not reflected in Commonwealth Caribbean decisions. This view assumes that once the legal principle is declared. It should be noted however that this rule is not absolute. Consequently Commonwealth Caribbean judges have no authority to: 1. overrule precedent. and we are apart of that system. are bound. it means that it is accepted that immutable legal principles are already contained within the body of law received from or imposed by the former colonisers. We treat English decisions as containing unchangeable rules that automatically apply to the Commonwealth Caribbean. This treatment applies to decisions from lower or inferior . Judicial Precedent and the Declaratory Theory in the Caribbean If the declaratory theory of law is accepted. Differences in statute.

2. . The status of identical statutes is limited by two rules: 1.courts as well. English decisions are binding. They were of the view that such precedents were to be entitled to respect. by an English court may not reflect the intentions of a Caribbean legislature for adopting that statute. Mahatmee. R. The ‘local circumstances rule’. Hill contains dicta. the interpretation of an English statute. It is thought “that such English decisions should be used merely as guides to statutory interpretation. as held in the case of Chettiar v. The development of a unique jurisprudence within the region is therefore undermined. which suggests that at least in respect of identical statutes. they are interpreted as if corresponding English decisions are binding. This approach was endorsed in Jamaica Carpet Mills. They of Lords decisions only to the extent that a point of common law of general Codified Common Law When Caribbean statutes are based on English law. and Statutes must not be contrary to the policy of the local legislation as expressed in statute. However it was suggested that such English decisions were only persuasive in Jaganath v. Caribbean Courts precedent where concede to House they promulgate application. have however been prepared to reject local circumstances are different. The Jamaican Court of Appeal actually rejected the argument that Privy Council interpretations of identical statutes should be binding on another jurisdiction. but were not binding. Trimble v.” One reason is.

Social Welfare Officer. so too for those who are concerned with its administration. Custom Officers and others will be daily confused if they were concerned with the whole. the court departed from English dicta that limited a grandmother’s ability to adopt children. (i) Classification of Law: reasons for classification. The Police. The second rule is self-explanatory. This rule was illustrated in AB v.The ‘local circumstances rule’ state that identical statutes (or statutes in pari materia) should apply only in so far as local circumstances permit and will be consistent with their interpretation. Consequently they are only concerned with that segment of the law classified as the . The law had to consider matrifocality and extended families in the Commonwealth Caribbean in regards to English dicta since it is common in the Caribbean for grandmothers to care for children. Classification aids in teaching exposition and writing of what on the surface is a jumbled mass of material. 3.

A breach of those duties may be both a crime and a tort. Agency Law. (ii) classification bases. (a) subject matter – for example. A crime is a public offence against the State. Constitutional Law. for example battery. Tort. In criminal matters actions are prosecuted by the state. So if there is a breach of contract the parties can go to court to obtain a remedy. The object of a criminal charge is not to compensate the victim. Also. trespass. The law can be classified according to subject matter and in so doing. it is to punish the offender. It is a civil wrong independent of contract. Comparative Law. People may do this for example when people want to provide for their children . which they intend to have legal consequences. has a right to be reimbursed in damages for the wrong committed. Tort arises out duties imposed by law and not by agreement.g. Tort – “The law of torts deals with the enforcement of duties existing between individuals as members of society”. a trust is formed. Trust – when persons hold property for the benefit of others example land.Criminal law and import/export trade law respectively. Crime – when people sue each other they are involved in a civil suit or action. Crime. Business Law. A party who has been injured in tort. Contract. Administrative Law. Contract – two or more people who form an agreement. e. and nuisance. arranged in alphabetical order. Criminal Law and so on. the enactment of law and the writing about the law necessitates focusing on some particular problem or area of the law within one or other of the classification schemes. Banking Law. have formed a contract. This wrong is called a “tort”. Nuisance trespass and slander are well-known civil wrongs.

for example. the Law of Contracts. (b) functional – procedural.g. Where the law is concerned with parties in their private capacity.g. While procedural laws are those that lay down the procedure to be followed to vindicate or defend that right. Having arrested you. Private law includes tort. substantive and The function that the law serves is also a basis for classification. . So the police officer has a duty/obligation to arrest you for certain offences – assuming the conditions exist for him so to do – an exercise based on a substantive law that gives him the power of arrest. the provisions of your Constitution that recognise and protect that group of rights called fundamental rights. property and trusts law. those subject areas are referred to as Private Law e. private law and public law. contract commercial law. Conflicts of Laws. Torts.when they die. Constitutional Law. Private law relates to people personally in everyday transactions. Law is divided into private and public law. (c) conceptual – for example. It also concerns private bodies and associations.g. Those subject areas with the state as a party are referred to as Public Law e. family. the law lays down the procedure that must be followed by him and the Court for the proper determination of the case. The laws that create rights and obligations or recognise and protect such rights e. Trustees will be appointed to look after the property but will not benefit from it themselves. Subject matter law can also be classified on the basis of the involvement of the state as a party. Administrative Law. Company Law. are referred to as substantive laws. Criminal Law and Revenue Law.

These relationships form the basis of administrative and constitutional law.Public law deals with the constitutions and the function of governmental organisations and their legal relationship with the ordinary citizen and with each other. Crimes which involve the State’s relationship with the power of control over the individual. is the concern of public law. .

Soon the Caribbean Court of Justice may replace it. Regional and international courts are also not represented in the three-tier structure (four for us in Jamaica) but they impact the judicial system in . Finally are the inferior courts. Courts of Appeal. which are not included in this hierarchy. Magistrates Courts – including Juvenile Court. intermediate or superior courts but because they are specialist courts they cannot be included in the hierarchy of ordinary courts. R.4. We have been able to do so since independence. this was affirmed in Hinds v. In the second rung of the structure are superior courts (or courts of record). However the power to create and regulate our court systems is derived from our constitutions and other local statutory instruments. The Privy Council is the final Court of Appeal for all the territories of the Commonwealth Caribbean except Guyana. The Court System of the Commonwealth Caribbean The Commonwealth Caribbean legal system is modeled on the English legal system. There are other specialised courts. At the apex of the structure is the Judicial Committee of the Privy Council. Family Court and Petty Sessions. this court is based in England. High Courts and Supreme Courts. This rung falls between the superior and inferior courts – an intermediate court. The court system is based on a three-tier structure. In Jamaica there is a fourth rung. which are found in the region. These courts may be inferior. (i) Courts: Criminal and hierarchy: Civil Courts – structure and the Judicial Committee of the Privy Council (Caribbean Court of Justice).

They/their: (i) (ii) grant bail. . (vi) handle quasi judicial matters such as applications for liquor licences. issue summonses & warrants of arrest. In the Commonwealth Caribbean there is one regional court Inferior courts Inferior courts (or courts of summary jurisdiction) are the lowest ranking courts in the legal system. in most territories. These courts do not have appellate jurisdiction. They comprise magistrates’ courts and petty sessional courts. (iv) have a summary criminal jurisdiction. (v) magistrates or justices of the peace have jurisdiction over juveniles and maintenance of children. The coroner (or chief officer) is usually a magistrate who sits with a petty jury. They do this by conducting inquiries. This means they can examine an accused to determine whether they should be committed to High Court for trial by jury. Coroner’s Courts are included among courts of inferior jurisdiction. (iii) justices of the peace & magistrates can deal with persons who have committed indictable offences. so they are able to deal with minor offences if a statute has conferred such jurisdiction on them. Petty sessional courts usually have criminal jurisdiction.the region. Appeals from petty sessions go to the High Court. The verdict is called ‘inquisitions’. which are called inquests. The court examines the circumstances or causes of suspicious or unnatural death.

But the accused is first given the choice of trial by jury or summarily. . In some situations. The jurisdiction of magistrates’ courts is conferred by statute. appeals from magistrates’ courts go to the Court of Appeal. Usually. But in Barbados. “The jurisdiction of inferior courts is severely limited. It is diverse and voluminous. They do this to determine if there is enough evidence for the matter to be sent to High Court. In hybrid offences a judge can decide whether or not an accused will be allowed to proceed summarily. This is a recent legislative development. appeals “go to a special division of the High Court called the called the Divisional court”. the accused still retains the right to appeal to the Court of Appeal. Summary procedures are quicker than in superior courts. These offences are called ‘hybrid offences’. If a hybrid offence is tried summarily. Inferior courts have a dual function. which are required to be tried summarily. So if an accused chooses summary trial and then changes his mind. if the accused is found guilty the penalties are usually harsher. they try summary offences. Where there is no jury. the judge may refuse this request if suspects that the accused is trying to delay his trial. Stipendiary magistrates operate them. because a jury does not sit. Summary offences are offences. The procedure operated by inferior courts is labeled ‘summary’. Superior courts do not do this.” The fines which magistrate’s impose are fixed by statute. by statute. Trials in magistrate’s court are conducted by magistrates. Because of their criminal jurisdictions magistrate’s courts must also hold preliminary inquiries into indictable matters. inferior courts can try indictable cases. either by placing a monetary limit determined by statute to the type of offence which may be heard.Magistrate’s Courts are another inferior court. they investigate and try criminal matters. or by restricting the jurisdiction to particular types of offences.

For example they cannot try civil suits in tort such as libel and slander. Where the resident magistrate has assumed jurisdiction over indictable offences he will also be assisted by an ex officio justice of the peace and the court administrator and prosecutor. In Belize the High Court is called . They are the High Court and the Court of Appeal. This differentiates them from superior courts. Resident magistrates have a wider jurisdiction than stipendiary magistrates. powers and authorities of these courts is conferred on them by the constitution or any other law. While the superior court will be centrally located. operate resident magistrates’ courts. It is an intermediate court.In civil matters inferior courts have limited jurisdiction. The remedies they offer will be limited by statute as well as jurisdiction. Collectively both courts are known as the Supreme Court. They can try indictable offences as well as civil cases in excess of the statutory monetary limits of magistrates’ courts. Superior courts The superior court (or court of records) is comprised of two courts. The High Court is the Court of First Instance or the trial court. Inferior courts cannot offer certain types of remedies. The jurisdiction is limited by monetary value as well as the nature of the offence. seduction and land title disputes. They also cannot try cases such as probate matters. Inferior courts will have branches located in different parts of the country. Resident Magistrate’s Courts are unique to Jamaica. It should be noted that the names of these courts may vary form territory to territory. who are assisted by court clerks who are legally qualified. Ordinary magistrates’ courts are operated by stipendiary magistrates. The Court of Appeal carries out the appellate function. Resident magistrates. The jurisdiction. The court is similar to county courts of England. A bailiff will also assist the resident magistrate. Inferior courts do not sit with a jury.

Belize and Jamaica the decision of the High Court is final. High Courts hear actions in equity. The Act also describes the functions and jurisdictions of the various courts. Electoral disputes are confined to the High Court and Court of Appeal. However if inferior courts can handle less serious matters. Sometimes. divorce and matrimonial causes. High Courts have both an original and an appellate jurisdiction. in certain instances the High Court will hear appeals from administrative tribunals on points of law. the High Courts will focus on the more important civil cases.the Supreme Court and the Court of Appeal is called the Court of Appeal. In its appellate function it will hear appeals from summary trials coming from inferior courts such as petty sessional courts. But the other territories such as the OECS states an appeal can be made to the Court of Appeal. probate bankruptcy and admirality matters. This jurisdiction is inherent. Its’ jurisdiction in these matter is unlimited. The procedure and operational details of this court are laid down in the Supreme Court of Judicature Acts in the region. There is no limit on the amount of damages the court can award but it usually follows the established principles used to assess the quantum of damages. common law. . In Barbados. The High Court tries both criminal and civil matters as a Court of First Instance. but no appeals cannot be made from the Court of Appeal. In electoral cases the superior courts have jurisdiction. Please remember in Barbados appeals from magistrates’ courts go to a special division of the High Court called the Divisional Court. The superior courts also exercise a supervisory jurisdiction over statutory bodies and statutory powers. Also the courts are given the power to create court regulations or rules. The High Court will determine matters concerning membership of the legislature (whether it is the Senate or House of Assembly).

High Courts have criminal jurisdictions over all treasons. a constitutional motion to the Privy Council is also available. The Court of Appeal hears appeals from the High Court and from magistrate’s courts. The Caribbean Court of Justice & the Privy Council . Appeals from this court go to the Court of Appeal. But there is a presumption that if an offence is created by statute it is triable by the High Court unless the statute says otherwise. A very significant function of the High Court or Supreme Court is that applications for judicial review are made within its jurisdiction. felonies and misdemeanors. The court tends to try the more serious indictable offences. where the application for redress to the Supreme Court failed. (ii) with leave of the Court of Appeal or upon the certificate of the trial judge that it is a fit case for appeal. An uneven number of judges usually sit the number is generally three.” The Court of Appeal also hears appeals from decisions of special courts such as quasi-judicial bodies. Criminal appeals however are limited to the following: “(i) against conviction on any ground which involves a question of law. So they are viewed as the ‘guardians’ of the constitution. If someone is seeking redress for a violation of fundamental constitutional rights. Civil appeals from the High Court are as of right. For example the Court of Appeal of Trinidad and Tobago hears appeals from the Industrial Court of Trinidad and Tobago. Because the court is not reviewing evidence or facts of the case it sits without a jury. In Trinidad and Tobago sometimes it is possible to go straight to the Privy Council. and (iii) with leave of the Court of Appeal against sentence where that sentence is not one fixed by law. Courts of Appeal only have appellate jurisdiction.

so it will be difficult to leave the court.The Caribbean Court of Justice The Agreement Establishing the Caribbean Supreme Court (the Agreement) is the treaty instrument in which the political leaders of CARICOM agreed in principle to establish the anticipated Regional Supreme Court. The governments of the region will need special parliamentary majorities or public approval in order to do this. Guyana and Jamaica seem to be in the position “… to carry out the necessary reform for the abolition of the appeals to the Privy Council. The Constitution – The bench of the Caribbean Court of Justice will comprise of an odd number of judges – not more than nine and no less than five. Only Barbados. It will be the final Court of Appeal of the States who ratify the agreement. the court . Presently the Judicial Committee of the Privy Council is the final Court of Appeal in the Commonwealth Caribbean except in Guyana. A President will head it. This Court will be called the Caribbean Court of Justice. It has been decided that the court will be based in Barbados.” But there is still opposition to the abolition of the Privy Council within the Caribbean Community. Antoine feels that the court will be established before there is unanimous agreement by CARICOM. Therefore the Privy Council will be replaced. But if circumstances require it. a notification period of three years is required. But the Agreement requires only three Contracting Parties in order for it to enter into force. If a Contracting Party wants to leave. Barbados and Jamaica have recently ratified the Agreement at the 24th Meeting of the Conference of Heads of Government of the Caribbean Community. Heads of Government can change the number of judges that can sit in the court. Whether the court will come into being depends on whether appeals to the Privy Council are abolished.

Only a qualified majority of three-quarters of the Contracting Parties. The court may also sit in two divisions comprising of at least ten members. But this will be limited to interpreting the Chaguaramus Treaty which established CARICOM and laid down its’ sphere of operation. In civil proceedings if the matter involves a question of great or general importance. in conjunction with the recommendation of the Legal Services Commission can appoint or remove the President. The court will also have ‘all of the jurisdiction and powers possessed in relation to that case by the Court of Appeal of the Contracting Party from which the appeal was bought. To be appointed. Jurisdiction – The Caribbean Court of Justice will have original jurisdiction. removal and discipline of judges is the responsibility of the specially created Legal Services Commission. there will be appeals: (i) (ii) as of right. Appeals to the Caribbean Court of Justice in respect of categories of appeal will be the same as the Privy Council’s. That is. It will also determine their terms and conditions of service. persons will have had to be a judge for fifteen years in a court of unlimited jurisdiction in the Commonwealth or have distinguished themselves in practice for a similar period of time.can sit in the territory of the Contracting Party. an appeal will lie with leave from the Court of . with leave. The nature and substance of the court’s jurisdiction will also be similar to that of the Privy Council’s. and (iii) those with special leave. The appointment.

the Privy Council retains its’ jurisdiction in the Caribbean. There can also be appeals from industrial courts. The appeals are not limited to final judgments. Although there is provision for this. The grounds for appeal to the Privy Council are laid out in the constitutions of the commonwealth Caribbean. The Privy Council became our final Court of Appeal because of colonialism. Contracting Parties will be permitted to allow other categories of appeals in ‘such other cases as may be described by law of the Contracting Party. . Interlocutory judgments can be appealed as well provided the statutory monetary limit is met. You can either get leave to appeal from our local Court of Appeal or from the Privy Council if the local court has refused and there are no provisions made for an appeal. few West Indian judges are appointed to the Privy Council. the right of appeal will be ‘as of right’. The Court is based in England. but the nature of it has changed. In either criminal or civil matters appeals will lie with special leave of the Caribbean Court of Justice from any decisions of the Court of Appeal of a Contracting Party. If the matter is civil or criminal but involves a question of constitutional interpretation.Appeal of the Contracting Party. In civil matters appeals are available as of right provided the amount in dispute is of the prescribed value or exceeds the states statutory limit or where the value of the disputed property is of the prescribed value. There are two ways to appeal to the Privy Council. Appeals concerning divorce are also ‘as of right’. The Privy Council’s jurisdiction as the final Court of Appeal is very restricted. Even though most countries in the Caribbean are independent.

The Privy Council is generous with respect to jurisdiction when it comes to constitutional issues. the local court has the discretion to grant an appeal to the Privy Council. . which are likely to occur often. special leaves of appeal are available to the Privy Council. In instances where fundamental constitutional rights or freedoms have been violated (these are entrenched rights). This is because of the Sovereign’s prerogative in either civil or criminal cases or where leave has been refused. The Privy Council will grant special leave if there are questions of great and general importance. there is a right of appeal to the Privy Council. Self-limits on jurisdiction – The Privy Council often limits its’ exercise of its’ appellate jurisdiction. the Privy Council was finally convinced that the issue was important and frequent enough to be addressed. After several years of lobbying. However no right of appeal lies in certain cases. 3. Additional rights of appeal may be prescribed by the legislatures of all jurisdictions. which is one of great general public importance or otherwise ought to be submitted to Her Majesty in Council for decision. If there is a clear departure from the requirements of justice it will exercise its jurisdiction. It uses its’ discretion to grant leave in criminal matters sparingly. In addition to this. such as those relating to electoral disputes. 2. R. identification evidence in Jamaican capital offences was frequently misused. as there are no strict requirements for leave to appeal.In civil proceedings if there is a question. But the individual must first exhaust his local alternatives. It will not grant leave unless there is a violation of due process or some other grave miscarriage of justice. Some examples are: 1. In Reid v.

This court has jurisdictional powers over all legal proceedings in relation to family life. “The Family Court has an obvious sociological thrust”. The Privy Council does not review facts or evidence. For example some family issues may be crucial to a country so a superior court may be chosen. Family Court The Judicature (Family Court) Act 1975 of Jamaica created the Family Court. The Privy Council will not act as the Court of First Instance. for example the concept of illegitimacy has been abolished. The Privy Council does not change the amount of damages awarded by the local courts. nor is it familiar with the circumstances of the local courts. 6. Some courts have summary jurisdiction and others are Superior Courts of Record. it will not grant leave to hear them. The aim of the court is to prevent the breakdown of the family . but more reform is needed. Consequently it would not be true to say that the Privy Council operate as a full appellate court. Belize and St. Vincent have followed suit. The Family Court is the first of its kind in the region. 5. because it does not benefit from the presence of witnesses. So if evidence or a point of law was not heard in the lower court. The Family Court was needed because laws were inadequate when it came to realities such as concubinage and illegitimacy. However it does not hear divorce cases. Our jurisprudence has attempted to reflect the needs of the West Indian family. but the idea has not taken root in the remainder of the Commonwealth Caribbean.4. The court’s jurisdiction depends on the priority given to the court and the nature of the problem.

and (iii) Children (Guardianship and Custody) Act (1957) Juvenile Courts In the Commonwealth Caribbean juvenile courts tend to be courts of summary jurisdiction that specifically hears charges against children or young people. Non-legal staff is trained in legal procedure and legal staff is given a sociological orientation. therefore it has equivalent status to a resident magistrate’s court. the Family Court is a Court of Record by virtue of s. (ii) Children (Adoption of) Act (1958). This is to help them to understand the functions and the roles of this coordinated unit (the court works in conjunction with the support services). in Jamaica. 3(1) of the Judicature (Family Court) Act 1975. The court’s jurisdiction is not entrenched. If this does not work the court tries to administer family laws and to quickly rehabilitate those who seek help. With necessary adaptations. Consequently the two judges have the same status as the resident magistrate. In St. The court coordinator who is the court’s administrator heads the non-legal staff. In Jamaica the Family Court is an intermediate court. Vincent & Belize the court is equivalent to the magistrate’s court. Now. the procedures of the resident magistrate’s court apply to the family court. because this will leave room for future change in the court’s jurisdiction. The philosophy is that the children who are tried by the court should not be viewed as criminals but as people who need help and . Acts such as the following give the court express jurisdiction in the matters the Acts address: (i) Affiliation Act (1926).unit. It particularly seeks to protect children as well as other family members. Family court personnel are specially trained.

The court tends to look into the welfare of these children. Juvenile courts usually sit in a separate building from the ordinary courts of law. Juvenile courts work in tandem with certain social institutions such as the Probation Office and Social Welfare Department. because the aim is to assist the juvenile. There is at least one RM Court in each of Jamaica's 13 parishes with jurisdiction within the parish and one mile outside the parish. usually once per week. Structure of the Jamaican Court System Several of the lower courts in Jamaica are not specifically provided for by the Constitution. In Jamaica. The Resident Magistrate's Court has both civil and criminal divisions and hears matters ranging from wounding to petty theft. They cannot be taken before a magistrate for instance.guidance. juvenile courts are headed by a resident magistrate as chairman and two justices of the peace. however. The court also tries to address the problem of street children or those who just need care. Hearings are informal. The jurisdiction of the court encompasses three main groups: “(a) juvenile offenders. Juvenile hearings are heard in camera. Decisions in all of these courts can be appealed to either the Supreme Court or the Court of Appeal depending on the case. usually one of whom is a woman. Juveniles are imprisoned only in exceptional circumstances. to hear serious criminal matters such as . (b) (c) juvenile offenders in need of care and protection. The most ubiquitous of these is the Resident Magistrate's Court which was created and is governed by the Judicature (Resident Magistrate's) Act. The court sits in different parishes as often as necessary. and juveniles deemed to be beyond control” There are special procedures for arraigning and trying juveniles who commit offences. but are creatures of statute. The Resident Magistrate has no authority.

the independence of a judge of the Court of Appeal is assured by protection against arbitrary removal from office or from reduction in his salary. Like most of the British Commonwealth. The independence of the Jamaican judiciary is ensured by preventing the forced removal of any judge from office except in extreme circumstances and protecting their salaries from reduction. The Privy Council's jurisdiction extends to most of the British Caribbean. Below the Resident Magistrate's Court is the Petty Session Court which comprises three justices of peace. Decisions of the Court of Appeal in Jamaica can be appealed to the Privy Council. rape and treason but can conduct a preliminary Inquiry to determine whether there is sufficient evidence for teh defendant to stand trial in the Supreme Court. The Jamaican Court of Appeal is provided for by the Jamaican Constitution at section 103. the final court of appeal in Jamaica and the Caribbean is the Judicial Committee of the Privy Council which sits in Englandt.murder. the Supreme Court consists of a Chief Justice. It is constituted by the President. The Gun Court hears preliminary inquiries into criminal cases involving crimes committed in Jamaica with the use of firearms. the Gun Court. and the Traffic Court which are governed respectively by the Judicature (Family Court) Act. The Judicature (Revenue Court) Act. The current Chief Justice is Lensley J. decisions of the Court of Appeal can be appealed to Her Majesty in Council or the Privy Council. Under section 110 of the Constitution. Decisions of the Supreme Court can constitutionally be appealed to the Court of Appeal under the Constitution. Governed by the Justice of the Peace Jurisdiction Act. the capital known as the Home Circuit. the Attorney General of Jamaica. The Court of Appeal is an appellate court that hears appeals from decisions of any of the resident magistrate courts and from the Supreme Court. The Supreme Court of Jamaica was established under section 97 of the Constitution as a court of original jurisdiction. The Gun Court Act and the Traffic Court Act. Wolfe. As in the case of the Supreme Court. The Criminal Jurisdiction of the Supreme Court. The Revenue Court. two justice of peaces have the equivalent power of one resident magistrate. the Chief Justice as ex officio member and six other judges as necessary. known as the Circuit Court convenes holds sittings in all parishes across Jamaica with the sitting in Kingston. that it was "inhuman or degrading punishment or other treatment" contrary to section 17 of the Jamaican Constitution to carry out a sentence for execution after a defendant had waited for five years or more for this execution and commuted the . The Civil jurisdiction sits always in Kingston. Under the Constitution. a senior puisne judge and other puisne judges. In 1993 the Privy Council held in Pratt & Morgan v. Other courts in Jamaica having similar powers to hear certain matters are the Family Court. O. Lord Falconer of Thoroton is the Lord Chancellor of the Privy Council.J. The Supreme Court has jurisdiction in both criminal and civil cases.

The Caribbean Court of Justice was established on February 14. 2001 as a regional judicial tribunal. Most significant on the minds of Jamaicans arguing for a local court of appeal is the Pratt & Morgan v. Syringa Marshall Burnett and the Attorney General of Jamaica. & Dudley Stokes. Advocates argue that the Privy Council Law Lords are far too removed from the social realities of Jamaica to understand the complexities underlying our legal system. This decision and other political facts led to an increased desire in the Caribbean for final appellate jurisdiction to vest in a regional Caribbean Court of Justice which was finally formed in 2001. In the 2005 decision Independent Jamaica Council for Human Rights (1998) Ltd. the Privy Council Board held that the Caribbean Court of Justice Act passed in Jamaica in 2004 and the Judicature (Appellate Jurisdication) (Amendment) Act 2004 which sought to eliminate the Privy Council as the final court of appeal in Jamaica were both void for unconstitutionality.appellant's death sentence to a life sentence. . the Privy Council Board held that the Caribbean Court of Justice Act passed in Jamaica in 2004 and the Judicature (Appellate Jurisdication) (Amendment) Act 2004 which sought to eliminate the Privy Council as the final court of appeal in Jamaica were both void for unconstitutionality. the Attorney General of Jamaica decision where the Privy Council commuted a death sentence to life on the grounds that it would be cruel and inhumane to execute a man after he had spent more than five years on death row. While the implementation of the Court has been completed and it has even began to hear cases. the Privy Council upheld the Court of Appeal award of J$35 million in a libel action brought by an ex-minister of government against the Gleaner Jamaica's foremost media. The Gleaner Co. has been upheld by the Inter-American Commission on Human Rights. because it is comprised of local justices will be more biased in the decision-making process than the Privy Council. Syringa Marshall Burnett and the Attorney General of Jamaica. The case will be reviewed by the Inter-American Court of Human Rights. The CCJ consists of jurists drawn from the islands of the British Caribbean. Opponents of the Court have argued that the CCJ. The CCJ has been very controversial even among the Caribbean legal community. Justice Michael de la Bastide. The Caribbean Court of Justice is intended to replace the Privy Council as the final court of appeal for all the member nations. An application to have this decision reviewed for its consistency with the American Convention on Human Rights to which Jamaica is a signatory. The president of the CCJ is The Right Honourable Mr. & others v. Abrahams v. there is some question about its jurisdiction and In the 2005 decision Independent Jamaica Council for Human Rights (1998) Ltd. In its most recent decision on media law in Jamaica. The American Convention protects freedom of thought and expression at article 13. & others v. The Caribbean Court of Justice has jurisdiction in both civil and criminal cases in the region.

Two special branches of the Supreme Court are the Revenue Court and the Gun Court. It hears and determines civil and criminal appeals from the Supreme Court. common law. the Family Court. the Revenue Court. the Gun Court. which establishes a newly created Caribbean Court of Justice. divorce and matrimonial causes. The court also hears applications for leave to appeal to the Judicial Committee of the Privy Council. The Supreme Court has a Civil Division with unlimited jurisdiction and a Civil Division. COURT OF APPEAL This appellate court was created in 1962 with the passing of the Jamaica Independence Act and the Constitution of Jamaica. The legislative framework for that new court is now being debated. the Criminal Court. equity. bankruptcy and admiralty matters. . This new court is intended to replace the Judicial Committee of the Privy Council as the Final Appellate Court.THE COURT STRUCTURE IN JAMAICA . SUPREME COURT This Court has unlimited jurisdiction in the whole range of criminal cases.AN OUTLINE THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL This body is comprised of Law Lords of the United Kingdom and hears appeals from the decisions of the Court of Appeal of Jamaica. the Traffic Court and the Resident Magistrate’s Court and also certain statutory quasi-judicial bodies such as the Disciplinary Committee of the General Legal Council. A treaty has been signed by the Government of Jamaica. The decisions are by way of advice to Her Majesty the Queen of England who is also Jamaica’s Head of State. which sits on Circuit in each parish.

The Criminal jurisdiction is limited to those offences in which the statute expressly says it is triable by a Resident Magistrate.000. The Excise Act. The Resident Magistrate exercises both criminal and civil jurisdiction. This court is staffed by a Supreme Court Judge. The Family Court This Court offers Judicial and Social Services to persons in an effort to preserve the family as a unit and to foster the welfare of children. In addition. the trial is by judge alone in camera. such as the . RESIDENT MAGISTRATE’S COURTS There is a Resident Magistrate’s Court in each of the fourteen (14) parishes of Jamaica.00. Persons arrested on charges of illegal possession of firearms and any offences involving the use of illegal firearms are tried by the Gun Court. The Court has jurisdiction to hear appeals under The Customs Act. The Income Tax Act. Resident Magistrates also hold Preliminary Enquiries in order to determine whether matters are to be sent for trial in the Circuit Court Division of the Supreme Court.The Revenue Court This superior court of record was established in 1971 for the purpose of dealing specifically with appeals from administrative bodies on revenue and related matters. The Civil Jurisdiction is limited to amounts not exceeding J$250. These Courts sit in every parish and hear Criminal matters involving children under 17 years of age. The Land Development Duty Act. Coroner's Court The Coroner is usually a Resident Magistrate who may sit with a jury to hold an inquest into sudden or suspicious deaths in his parish. The Land Valuation Act and The Transfer Tax Act. Save in cases of murder. there are a variety of special courts for special purposes. The Petty Sessions Courts These Courts are presided over by Justices of the Peace and sit regularly in all principal towns of each parish to deal with minor causes summarily. The Gun Court This Court sits in Kingston. Jamaica. The Juvenile Court This Court consists of a Resident Magistrate as chairman and two Justices one of whom shall be a woman.

the amounts and the extent of the jurisdiction of this court is provided for in the Judicature (Resident Magistrate’s) Act. the Juvenile Court. the Drug Court and the Night Court. This Court presides over both civil and criminal matters. Gun Court. The Gun Court Act was later expanded to include the Western Regional . the Traffic Court.Court Martial for the trial of members of the Defense Force and the Water Courts to hear water disputes. Judges of the Supreme Court are appointed by the Governor General on the recommendation of the Judicial Services Commission. treason and rape. a Senior Puisne Judge and at least twenty other Puisne Judges. granting of probate and letters of administration. Civil matters tried at a Resident Magistrate’s Court include recovery of possession. mandamus and prohibition. The Courts of Jamaica Petty Session The Petty Session Court is presided over by Justices of the Peace. Small Claims Court. recovery of rent. The Resident Magistrate must be an Attorney-at-law of at least five years standing. The Justices of the Peace Jurisdiction Act confer various powers on the Justice of the Peace including the power to issue warrants consequent on non-obedience to summons. Two divisions of the Supreme Court are the Revenue Court established in 1971 and the Gun Court established in 1974. This Court exercises important supervisory functions over tribunals like the Industrial Disputes Tribunal and the Resident Magistrate’s Court in the hearing of writs of habeas corpus and making of orders of certiorari. In this enquiry. the purpose is to determine whether the evidence is sufficient for the accused to stand trial at the Supreme Court. The divisions of the Resident Magistrate’s Court are the Family Court. The jurisdiction of this Court is defined by Statute. however in such cases a Preliminary Examination or enquiry into the charge is held. unlike a trial where the objective is to determine whether the defendant is guilty or not guilty. Resident Magistrates are appointed by the Governor General and the Judicial Services Commission. They have jurisdiction to hear applications regarding breaches of fundamental rights and freedom as provided for under the Constitution. The Resident Magistrate’s Court has limited jurisdiction in both civil and criminal matters. The Resident Magistrate’s Court has no power to hold a trial for certain criminal offences including murder. Resident Magistrate’s Court There is a Resident Magistrate’s Court for every Parish and it has jurisdiction within that Parish and one mile beyond its boundary line. It consists of the Chief Justice. A Resident Magistrate has the power of two Justices of the Peace. The Supreme Court The Supreme Court has unlimited jurisdiction in civil and criminal matters. Puisne Judges must be Attorneys-at-law of at least ten years standing.

while that which is convened in the other Parishes are named after the respective Parish. Judges of the Court of Appeal are appointed by the Governor General on the recommendation of the Judicial Services Commission. Westmoreland and Hanover. The Chief Justice is an exofficio member. but only sits on the invitation of the President in matters in which that the full Court is sitting. It consists of the President of the Court of Appeal and six Judges of Appeal. Trelawny. The Court of Appeal Appeals against decisions from both the Supreme Court and the Resident Magistrate’s Court are heard in the Court of Appeal. jurisdiction and procedure. The Judiciary . jury. as it eliminates the need to travel to Kingston for the prosecution of cases. The Circuit Court is the criminal jurisdiction of the Supreme Court that is convened in Parishes for the proper administration of justice. A Judge of the Court of Appeal must be an Attorneyat-law of at least ten years standing.Gun Court that hears gun offences committed in the parishes of St.Jurisdiction Because of the doctrine of the ‘separation of powers’ the independence of the judiciary is embedded in the constitutions of the Commonwealth Caribbean. James Circuit Court. for example. James. Andrew is called the Home Circuit Court. It is convenient for the parties involved. The Chief Justice and the President of the Court of Appeal are appointed by the Governor General on the recommendation of the Prime Minister after consultation with the Leader of Opposition. The third division of the Supreme Court is the Commercial Court which began operations in February 2001. The Circuit Court held for the parishes of Kingston and St. Catherine Circuit Court or the St. Another facet . (ii) personnel. the St.

A Court of Appeal is also established which is headed by a President. Under the doctrine: 1. This means that there must be the institutional independence of the court and that there must be security of tenure. the court’s monopoly of judicial power is protected. Chief Justice and three other judges it also makes provisions for the appointment of other judges as may be prescribed by Parliament. tenure and removal of judges. In the Commonwealth Caribbean the Chief Justice and puisne judges are appointed by the Head of State i. the . even if it seems to be without cause. Apart from this it should be noted that a court needs to be established according to the provisions of the constitution or relevant statute in order to be lawful. This was so found in the case of Hinds v R. Salaries and allowances are expected to be generous in order to ensure independence and impartiality. which is headed by a Chief Justice as well as senior puisne judges. Judges are also free from civil and criminal actions for anything said or done while on the bench. This case decided that only a court can exercise judicial power.of the doctrine is the jurisdiction of the judiciary. 2. The arrangement of the work of the court is the responsibility of the President of the Court of Appeal. also the jurisdiction of specified courts is also protected. For example the Jamaican constitution establishes a Supreme Court. For the legal system to administer justice judiciary must be independent.e. whenever he is sitting in that court he will preside. Just because a judge acts in his official capacity does not necessarily mean that he is exercising his judicial function. The constitutions of the region provide for the appointment. The court’s monopoly of judicial power is a part of constitutional law in Jamaica (and so the remainder of the Commonwealth Caribbean).

It used to be viewed as the cornerstone in the administration of common law but now its’ use is on the decline. Impartiality in adjudicating is therefore based on ignorance of the facts. It is a way of ensuring that the justice system is fair. “In contemporary times. Judges may be removed for misconduct. The purpose of the jury is to judge facts as opposed to law. Only a Judicial Committee can remove a judge. However. There is no absolute right to trial by jury except in relation to indictable offences. we believe that to be judges of fact. The Jury System Trial by jury is a fundamental element of democracies. corruption and infirmity. The . In ordinary criminal and civil matters the jury consists of nine.Governor General (or President if the territory in a republic). but first there must be an investigation by a tribunal of two or more persons. A jury is composed of twelve members in murder and treason trials. The Prime Minister recommends them for the posts after consultation with the Leader of the Opposition.” So if any juror has knowledge of the facts he must state these publicly. This right pertains to criminal cases triable in the Supreme Court. The required qualification of judges will be found in the various Supreme Court of Judicature Acts of the region. If is criminal it will depend on whether it is an indictable or summary offence. Usually they need to be a legal advocate of at least ten years standing. Whether or not a jury is used depends on whether the matter to be tried is civil or criminal. one must come to court ignorant of the facts. Bermuda and the Bahamas have made trial by jury a constitutional right.

The Superintendent then sends a copy of the list to the Resident Magistrate for the parish who is the chief judicial officer in the parish. university or other institution of learning. In Jamaica persons accused of certain criminal acts. The Jury system Page 3 died or is incarcerated in prison for a long period of time. It is in the judge’s discretion whether a jury should be used. Persons registered under the Nurses and Midwives Act. the Police Superintendent may inform the Court that a person on the Voters List has Page 10 Superintendent of Roads and Works Inspectors of Poor. At this public hearing anyone may object to the inclusion of a person on the list of jurors that is being compiled. This was inherited from the British system of jurisprudence. the Director of Elections sends an updated Voters List for each of the parishes to the Superintendent of Police in charge of each parish. another special sitting of the Court is held to finally settle the Jury List.use of juries in civil cases has declined rapidly. this Jury List is sent to the Registrar of the Supreme Court and a copy is kept by the Clerk of Courts for the parish. it is said. A JURY A jury is a group of person drawn from civil society and who. Persons registered under the Professional Supplementary to Medicine Act. brings a commonsense experience into the matter of determining the guilt or innocence of a fellow citizen. Persons enrolled as students in any school. . It is believed that a juror understands the nuances and idiosyncrasies of their society and brings to bear on a trial their collective experiences. Finally. The law prohibits alteration to the Jury List. Compiling the Jury List Every four years since 1990. college. are judged by a jury of their peers. Who are disqualified from Jury Duty? The law disqualifies the following persons from serving as jurors: Persons under 18 years of age or over the age of 65. The Resident Magistrate gives notice of a special sitting of the Court in Petty Sessions to be held on the third Thursday in the month of May when the Voters List is examined by him or her. For example. members of staff of the Electoral Office and other employees of the Electoral Advisory Committee. The Director of Elections. along with two or more Justices of the Peace nominated by the Custos. On the third Thursday in August that same year. That name would be excluded from the jury list. City Engineer. Trial by jury is available but seldom used. This list will be the one used for the next four years in the parish. except in defamation or fraud.

Persons serving or who have served sentence of imprisonment of more than six months. serious offences such as murder. unless good cause is shown. . b) Jurors are sometimes required to hear civil cases.000. Excuses from Jury Service Jurors can be excused from attendance at Court on the ground of illness. This is done upon the application of either the plaintiff or defendant for a jury to determine the facts of a case. or other good reason. c) Jurors sit with the Coroner (Resident Magistrate) to hear evidence and decide how and what caused the death of a person.e. Masters or captains of vessels actually serving as such. and seven for other offences. Page 4 The Jury system Page 9 b. Penalty for Non-attendance A fine of Two Thousand Dollars ($2. The number of jurors is seven.00) is imposed. Pilots legally appointed and actually serving as such. It is called a Coroner’s Inquest. but not summary offences such as traffic violations. Some well known offences tried by a jury include: Murder Manslaughter Rape. Persons engaged in a supervisory or technical capacity in any business concerned in the operation of commercial aircraft. shooting with intent and unlawful wounding. read or write English. What cases are tried by a Jury? a) All serious cases are tried by a Circuit (Supreme) Court judge sitting with a jury comprised of twelve (12) persons in murder or treason. Any institution providing higher education of a standard comparable to that provided by the institutions specified in paragraph (a).A person who is not a Commonwealth citizen. A person awaiting trial in the Resident Magistrate or Circuit Court for an indictable offence i. Carnal abuse and buggery Robbery with aggravation or violence Arson Fraud in respect of wills and land titles Treason Seditious Libel Abduction and kidnapping NOTE: Offences (except murder) involving the use of a firearm are tried by a Supreme Court judge without a jury. where there is suspicion of murder or manslaughter. for non-attendance at court for each day’s absence. Unable to speak.

Mayors and Deputy Mayors or chairmen and vice-chairmen of Parish Councils. Page 8 LIST OF PERSONS EXEMPT FROM SERVING AS JURORS Members and spouses of members of the Privy Council. Commonwealth citizens performing diplomatic or consular duties. the Master in Chambers and the spouse of the Master in Chambers. and (b) that the person claiming the exemption shall claim the same by notice in writing under his hand addressed to the Clerk of the Courts of the parish in which the public wharf is situated. the University of the West Indies. or The Jury system Page 5 JURY PANEL SELECTION PROCESS Circuit Court Before the Circuit Court is to begin in a parish. subject to the following conditions— (a) that the exemption extends to one person only in respect of each public wharf. the Registrar and spouse of the Registrar of the Supreme Court. Medical practitioners in actual practice. Senate and House of Representatives. Andrew Corporation.Lighthouse keepers. Officers holding appointments and receiving salaries in the public service of Jamaica. Science and Technology or Teachers Training Colleges. Judges and spouses of Judges of the Supreme Court. Attorneys-at-law in actual practice. The Mayor and Deputy Mayor of the Kingston and St. Ministers of religion. Registered Pharmacists dispensing drugs and poisons under the Pharmacy Act. Secretaries of Parish Councils. the Registrar of the Supreme Court randomly selects a minimum of seventy (70) names from the list that was . Councillors of the Kingston and Saint Andrew Corporation and of the Parish Councils. Custodes of parishes. Judges and spouses of Judges of the Court of Appeal. Dental practitioners registered under the Dental Act. Veterinary Surgeons registered under the Veterinary Act. Judges and spouses of Judges of the Family Court. Teachers in a. non-commissioned officers and men of the Regular Force and Reserve Force of the Jamaica Defence Force. the College of Arts. and delivered to him on or before the first day of August each year. Judges and spouses of Judges of the Traffic Court and Resident Magistrates and spouses of Resident Magistrates. Officers. following no secular occupation. School teachers. Cabinet. Wharfingers within the meaning of the interpretation section of the Wharfage Act.

is chosen by the jurors and then the person on trial is introduced to them by the Clerk of Court.B. in words to his effect: “the accused C. jurors remaining unchallenged at the selection of the jury to try a case are required to take an oath to the effect that he or she will faithfully try the several issues joined between Our Sovereign Lady the Queen and the accused (prisoner at the Bar). Coroner’s Court sits in some of the rural parishes one day per month.sent to him/her. the prosecutor and defendant has the right to challenge jurors without showing any cause and can also challenge for good cause. Coroner’s Court A Coroner’s Inquest is held when: 1. to say whether he is guilty or not guilty. In the Corporate Area. The summonses are served by the police on the potential jurors who are liable to penalty for non-attendance. and give a true verdict according to the evidence. Each Juror on the panel is assigned a number. or 2. The Writ is then returned to the Registrar who will transmit the panel to the Clerk of Courts who acts as Clerk to the Circuit Court. having heard the evidence. The Coroner is informed of a death occurring within the parish and the reports lead him to suspect that the deceased came to his death by murder or manslaughter. It is from this panel that persons will be eventually chosen to try a case.” At the trial. The challenged juror would stand down and not be sworn to try that case.” Opening Statements are then made and witnesses are called. is indicted before you for the offence of murder. sittings of the Court is on a daily basis. who acts as chairman and spokesman. Throughout the proceedings the judge is in charge and the jurors have to take instructions on the law from the judge even whilst they are the sole judges of the facts of the case. to this indictment he has pleaded “Not Guilty” and it is your charge therefore. Jurors’ role in Court IN Criminal cases. a summons to attend and serve at the Circuit Court. and issue a Writ to the Commissioner of Police requesting him to serve the persons named in the Writ. It has been the practice to have numbered balls in a sealed container from which a single ball is released as required by the Clerk. . The Commissioner must issue the summonses and have them served at least 21 days before the Court sits. A foreman. The Coroner is directed by the Director of Public Prosecutions to hold an inquest The Coroner issues summonses for not less than five nor more then 30 persons on the jury list to attend and participate in the inquest. These elaborate procedures are designed to prevent “jury fixing.

the proceedings may assume adversarial characteristics. They will have to return a verdict and will have time to sit together in private to discuss the case and arrive at a verdict in accordance with they oath they took. Jurors in coroners cases are not determining guilt or innocence of anyone. and in W's case the juror was a CPS prosecutor who had often appeared as an advocate in courts in the same area as the trial. Page 7 The Jury system A Level Law update: Dispute solving Juries R v Abdroikov Green & Williamson [2007] UKHL 37 Allowing two of three conjoined appeals and dismissing the third. but (by a . IN Coroner’s Court. but. when and where the deceased came by his death. which might lead a reasonable person to question his impartiality. Jurors are required to sign the Inquisition certifying their verdict. the jurors must by their verdict say how. they should name and charge those persons who committed the crime. the jurors who have been sworn must return a verdict. the House of Lords ruled that the presence of a police officer or other law enforcement agent on a jury does not in itself make the trial unfair and (because the jury consists of twelve people) would not lead a fair-minded person to suspect a real possibility of bias. they have to determine what level of damages (money compensation) the aggrieved party should receive.Page 6 At the conclusion of the evidence lawyers representing the prosecution and the Defendant make speeches to advance their case. In A's case the juror was a police officer having no connection with any of the witnesses: that was no reason to exclude him from the jury. whose evidence he might subconsciously give greater weight to. Primarily. Where they are satisfied that the crime of murder or manslaughter has been committed. But in G's case the jury included a police officer from the same operational area as (though not personally known to) the police officer against whom the crime had allegedly been committed. The House therefore upheld A's conviction unanimously. but because the inquiry may point to criminal culpability on the part of a person/persons who can be identified and are sometimes witnesses at the inquest. for example. and then the Judge sums up the entire case for the benefit of the Jury. IN Civil cases not only do they decide on who is liable for the wrong committed. in a libel case.

and the final jury will be selected by ballot from those jurors who have not been excused for cause. and during the lunch break the judge told counsel that he believed the claimants' evidence and could not see how the defendant (a police officer. Judges Lord Phillips CJ recently made a speech on the topic of judicial independence. the next five about any relationships they might have (directly or through immediate relatives or close friends) with people. and the tenth about any other reason why they might not be able to return an impartial verdict based on the evidence. The trial continued nevertheless. who might think he was always right) could win. The claimants gave evidence and were cross-examined. In each case. the defendant gave evidence in the afternoon and next day the judge gave judgment in favour of the claimants. Judges and magistrates Statistics from the Office for Judicial Complaints show that in 2006-2007 show that two judges and 28 magistrates were disciplined (including 13 magistrates removed from office) following criminal convictions (including motoring offences) or for misconduct such as inappropriate comments or behaviour. 80 potential jurors chosen at random from the electoral register were given a questionnaire to complete. Criminal process . the text of which is available here. The first four questions asked about the jurors' availability for up to six months. Allowing the defendant's appeal (but noting that the parties had in fact settled their dispute) Sedley LJ said the judge's remarks might have given a fair-minded observer the impression that he had prejudged the case. or with journalists who had reported on Diana's death. this represents less than one in a thousand of all judges or magistrates. Juries When a jury was to be selected for the inquest into the death of Diana Princess of Wales. There will be no other voir dire.majority) quashed G's and remitted W's to the Court of Appeal for consideration of a possible retrial. Judges Steadman-Byrne v Amjad [2007] EWCA Civ 625 In a claim for damages following a road accident. a main issue was whether there had been two or three people in the claimants' car. families or organisations possibly linked with the death or likely to be involved in the inquest.

for the purpose for which the powers were conferred and without exceeding the limits of such powers .R (Da Silva) v DPP [2006] EWHC 3204 (Admin) An innocent man was shot and killed by police officers who mistook him for a terrorist. without prohibitive cost or inordinate delay. Lord Bingham (the Senior Law Lord) suggested that the key features of the rule of law .are as follows: The law must be accessible and so far as possible intelligible. failed to comply with the Code. or was so perverse as to be Wednesbury unreasonable. clear and predictable Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion The laws of the land should apply equally to all. but their application failed. The victim's family sought to challenge the CPS's decision not to prosecute any individual police officer for murder or manslaughter. In the instant case. save to the extent that objective differences justify differentiation The law must afford adequate protection of fundamental human rights Means must be provided for resolving. Judicial independence In a lecture given in November 2006. The Court agreed that such a decision was in principle open to judicial review. the DPP felt that he would be unable to prove to a jury (to the necessary high standard) that the officers had not acted in self-defence: the case therefore failed the evidence test and the DPP's decision not to prosecute was both lawful and rational. in good faith. bona fide civil disputes which the parties themselves are unable to resolve Ministers and public officers at all levels must exercise the powers conferred on them reasonably. but only where it was based on some unlawful policy.the application of which depends in no small measure on the independence of the judges from government pressure .

the defendant pled guilty and was sentenced to imprisonment for life with a minimum term of 17 years. In preliminary proceedings. Open justice . (Special arrangements apply for those under 18 in full-time education. inviting comments on a proposal that subject to appropriate safeguards. but which he had subsequently admitted. the burden of proof on that issue lies on him. [At the new trial three months later. Judges The Lord Chancellor published a consultation paper in September 2006. North Yorkshire. those on income support. The consultation period will end in December.] Legal advice and assistance A means test for legal representation in the Magistrates' Court was reintroduced in October 2006. and some other vulnerable groups. and full funding only where it is below £12 000. the Court of Appeal said that where (as here) the defendant in a civil action for battery claims to have honestly and reasonably believed in the need for reasonable force in selfdefence.Adjudicative procedures provided by the state should be fair The state must comply with its obligations in international law Criminal procedure R v Dunlop [2006] EWCA Crim 1354 The Court of Appeal ruled that following the statutory amendment of the "double jeopardy" rule.) A similar test is likely to apply to cases in the Crown Court from some time in 2007. Burden of proof Ashley v Sussex Constabulary [2006] EWCA Civ 1085 Relatives of a man shot and killed in a police raid sought damages against the police. full-time judges should be allowed to resign from the bench and return to practice as solicitors or barristers. Magistrates In September 2006 a 19-year-old law student was appointed to the bench in Pontefract. the defendant could be retried for a murder of which he had been acquitted some fifteen years ago. Funding is now available only where the defendant's disposable income is less than about £20 000.

would not have thought there was any real possibility of apparent bias in the decision. Even these were only a small fraction of some 70 000 sentences passed altogether in the Crown Court in three years.Malik v Central Criminal Court [2000] EWHC 1539 (Admin) A young man accused of an offence under the Terrorism Act 2000 applied for bail and sought to have this application heard in public. court hearings should take place in public. Judges R (Port Regis School) v North Dorset DC [2006] EWHC 742 (Admin) The school sought to overturn a grant of planning permission to a third party. Judges In June 2006 the press ran stories about more than 200 "unduly lenient" sentences increased by the Court of Appeal over a three-year period. The Common Serjeant refused both applications. The High Court said the starting point is that other things being equal. so the judges' record is actually very good. Legal aid Regulations shortly to be made made under the Criminal Defence Service Act 2006 are expected to make two significant changes to the existing arrangements. and certainly not of judicial discretion. . informed of the true facts about freemasonry rather than its general reputation. What was not reported was that nearly 5000 sentences were reduced over the same period: judges were far more often too severe. arguing that the proposed development was (in part) for the benefit of the local freemasons. and that two of the councillors involved in the decision were themselves freemasons (albeit of a different lodge). and the matter remitted for reconsideration in the light of this principle. The judge's decision in this case would therefore be quashed. Newman J said a fairminded observer. First. a means test of some kind will be reintroduced for criminal legal aid. from which it was to be inferred that judges are "too soft". Although judges and magistrates may (and often do) hear bail applications in chambers when justice so requires. Refusing judicial review. And second. but of public obligation. and the applicant applied for judicial review. the hearing in open court of an application directly affecting personal liberty is in the first instance a matter not of private or individual right. the power to grant legal aid for representation will be transferred from the courts to the Legal Services Commission.

five judges from various levels. a barrister. and an Office for Judicial Complaints will be set up shortly. including the statutory duty imposed on Ministers to respect and uphold judicial independence. The Judicial Appointments Commission consists of Baroness Prashar as Chairman. and the Lord Chief Justice became formally the head of the judiciary. The Commission will not take responsibility for the selection of magistrates until it is ready to do so. a tribunal member. The Commission is now responsible for the selection of candidates for all judicial appointments except (for a few months) those for which the selection process had already begun and (for a maximum of twelve months) appointments to the High Court and above.Judges Several major parts of the Constitutional Reform Act 2005 came into force on 3 April 2006. The Judicial Appointments and Conduct Ombudsman (Sir John Brigstocke. a lay magistrate. The Lord Chancellor lost the right to sit as a judge (a right which the present Lord Chancellor had never exercised). a former naval officer) took office on the same date. _____________________ Students are instructed to read Chapter Sixteen of Rose-Marie Belle’s Antoine’s Commonwealth Caribbean Law and Legal Systems. . a solicitor. with a Judicial Office to support him in this role. and five lay members.

Industrial Courts Industrial Courts or Industrial Tribunals deal with the determination of industrial relation matters. this principle is unknown in other areas of law. Consequently the orientation of industrial courts is unique. Human relations are paramount in these courts/tribunals. Negotiations are more important than legal technique (consequently not all personnel is legally qualified).(iii) industrial courts and tribunals. Trinidad and Tobago has an Industrial Court. specifically those created by Constitution or Statute. But they are expected to consider the equitable . Historically workers unions have been regarded as restraining trade and promoting criminal conspiracy. One of the reasons this court was developed is. it has jurisdiction to try all labour law matters. ordinary courts are not viewed as appropriate for handling labour relation matters – workers/unions never seem to do well. They operate by the ‘principles and practices of good industrial relations’. In Jamaica industrial tribunals are separate quasi-judicial bodies. The court is a High Court or Supreme Court of Record. Appeals go straight to the Court of Appeal.

Economists.g. After a series of meetings and after considering a proposal from the Leader of the Opposition for the establishment of a Constituent Assembly to frame a new constitution the Joint Select Committee recommended that Parliament should establish a Constitution Commission to examine proposals . The court usually only assumes jurisdiction if conciliatory talks have failed and conciliatory legislation has been exhausted. charged with recommending ‘the precise form and content of constitutional amendments both with regard to an Electoral Commission and other aspects of reform’. Where there is national insurance as in Trinidad and Tobago. the Teaching Commission. there is a National Insurance Appeals tribunals to settle disputed claims for such insurance. the Police Service Commissions to deal with inter alia the discipline of the respective category of public servants under their control. the Public Service Commission. The court’s personnel do not consist of solely legally qualified people. Service Commissions “Other tribunals that have been established are the several Service Commissions e. The court also registers collective agreements.principle of ‘good conscience’ when examining the merits of a case. staff it. accountants and personnel who have experience in industrial relations.” Constitutional reform proposals “… a process of constitutional review began in 1991 with the formation of a Joint Select Committee on Constitutional and Electoral Reform. such as trade unionists.

from ‘the public as well as to initiate discussions on pints raised by its own membership’. The Commission was duly appointed under the chairmanship of Mr. Justice James Kerr – a distinguished legal luminary – whereupon Parliament in February 1992 suspended the work of the Joint Select Committee. The Commission in turn convened 36 meetings, hosted 13 consultations which were held in each of the parishes. It received 129 submissions from individuals and organisations. (The commission will be referred to hereafter as ‘the Kerr Commission’.) Meanwhile, in September 1993, the Senate has approved the appointment of a select committee and on 5 October 1993 the House of Representatives had taken a similar step. Both committees were charged jointly to recommend to the legislature the precise form and content of a revised constitution and they began work on 27 October 1993 when they selected Senator David Coore QC, a renowned jurist who was President of the Senate, as their chairman. The Joint Select Committee was to be re-appointed with the same membership following a prorogation of Parliament in April 1994. It duly considered the voluminous recommendations of the Kerr Commission and eventually submitted its report to Parliament in May 1995. Although the Jamaican Constitution has not up to the time of writing (January 2002) been revised on the basis of the Select Committee’s recommendations, the research and well considered proposals it has published have been avidly studied in the other territories of the Caribbean area – and especially in those jurisdictions which have, like Jamaica, been engaged in reviewing their own constitutions. We must now address some of the more pertinent recommendations made and consider how they have influenced other constitution making. …

Citizen’s Protection Bureau In considering how to ensure that citizens whose rights are infringed secure proper redress, the Jamaica Joint Select Committee realised that many such persons lack the means of financing proper legal representation. It was also realised that the ombudsman was effective only in dealing with complaints arising from administrative action and that the office was powerless to enforce recommendations made. To meet those concerns, the Select Committee recommended the establishment of a Parliamentary Commission to be known as the Citizen’s Protection Bureau, the Head of which would be the public defender. This bureau, which has now been established, has two functions: (a) it replaces the ombudsman, but in addition to the powers previously exercised by that officer the public defender can compel compliance with its decisions and in a proper case can even make recommendations for disciplinary action; and (b) it ensures that complaints alleging infringement of citizen’s rights are provided with ready access to professional advise and, where necessary, legal representation. Already St. Kitts and Nevis is considering the inclusion in their new constitution of a public defender: the Phillips Commission having recommended, accordingly, after studying the Jamaica proposals. Service commissions The Joint select Committee recommended that the size of the membership of the Judicial Service Commission should move from six to nine members and three members would be members of the non-legal or non-judicial public service.

The Public Service Commission’s nine members will be – two selected from a panel of five nominated by the Civil Service Association, one from a panel of three nominated by the Permanent Secretaries Board; six members appointed by the Head of State either:
(i)

acting on the advice of the prime Minister after he has consulted the Leader of the Opposition (this being the Majority opinion); or after consultation with the Prime Minister and the Leader of the Opposition (this being the opinion of the Minority).

(ii)

The Police Service Commission is to be appointed by the Head of State after consultation with the Prime Minister and the leader of the Opposition; the appointments to be subject to parliamentary confirmation. The recommendation is for an increase in the membership from five to seven. The Joint Select Committee felt that these additional two members should be appointed at the discretion of the Head of State, while the Kerr Commission felt they should be selected from professional, philanthropic, religious and other organisations.”

(iv) Alternative Dispute Resolution (ADR), for example, Arbitration, Conciliation and Mediation. (Emphasis should be placed on Mediation). Alternative Dispute Resolution The components of alternative dispute resolution (ADR) mechanism are arbitration, conciliation and mediation. They can all replace court procedure for any subject area, but they ten to be used in commercial and labour law. “Arbitration conciliation and mediation describe processes whereby two or more parties in a dispute attempt to reach a consensus without resource to the courts in an environment of compromise.” A third party facilitates the process. ADR allows parties to bargain (or try to) in good faith without being bound by strict rules of procedure. It is not the rules which will determine the outcome of ADR, it is the strength of anyone party. In the Commonwealth Caribbean, arbitration tends to be used in labour law matters. Arbitration Arbitration is conducted in a less formal way than conventional trials. The arbitrator listens to the evidence

which are not binding on the parties. The judge may conduct the conciliation process as he or she thinks fit. the dispute is submitted to arbitration before the same or different neutral as the parties have agreed”. Conciliation Conciliation is in-court ADR. Conciliation usually has a less formal structure than mediation. Mediation Mediation is non-adversarial and private.submitted by the parties and then makes a decision in the form of an arbitration award. It occurs where one or more neutral persons attempt to facilitate discussions. Mediation/arbitration – sometimes called “med-arbs” “The parties initially attempt to resolve their disputes through mediation. equity and justice. and help to draw up a set of terms. After opening statements by all parties the mediator will meet with the parties separately in private (called a “private caucus”). which all the parties can agree to in a binding settlement agreement. they may take a view that is inimical to one parties’ position. It is like mediation. If agreement is not reached by a predetermined date usually not more than two to three months from the date of submission. but will be guided by the principles of impartiality. which involves a judge. He will try to explore various options with them. The conciliation process may be described as one where a judge is used by the parties to reach settlement in a civil dispute before filing a civil action by making recommendations. This award may be binding or non-binding – this will depend on what the parties would have agreed in advance. which will lead to the voluntary settlement of the dispute. Conciliation is informal and left to the judge’s discretion. It is not open to the public and the parties are usually heard . Judges in this form of ADR do not necessarily remain impartial.

“ If there is little hope of conciliation the judge will formally terminate the process. Advantages and disadvantages Advantages: (a) lack of formality – which could lead to speedy disposal and resolution of the dispute and it’s causes. speed – the use of experts in complex legal and technical issues saves time.individually. the parties have greater control – they can chose arbitrators. agreement or order. by agreeing to relax the rules of evidence cost – the process saves on time so costs are reduced. Only in exceptional case are both parties summoned together. and preservation of relationships – process is informal so it lacks the animosity of the adversarial system. the parties are the focus of the process so there is a lesser chance of technical injustice. lack of pleadings – reduces time. confidentiality – disputes are resolved in private. If settlement is reached it will be reduced to writing in the form of a conciliation summary. costs and formality. (b) (c) (d) (e) (f) (g) (h) Disadvantages: . If it is signed by the disputants it is entered thus having the effect of a final court judgment.

(b) (c) (d) 5. discipline and role of lawyers . possible conflict of interest – may arise in choice of adjudicators. and some results are not binding and could lead to further litigation. the process must be transparent and fair. The legal profession: training.(a) the right of review is limited – this depends on the rules of the jurisdiction and what the parties had previously decided. if delay is not controlled it can get out of hand.

Jamaica and the remainder at Cave Hill. disciplining lawyers. First a prospective lawyer must obtain an academic degree in Law. The degree is a prerequisite for the Legal Education Certificate otherwise known as ‘the Bar’.Training The Council of Legal Education oversees legal education in Jamaica. amongst other things. This part of qualification is very practical the exams sat are professional. Barbados. This course usually takes three years. The Bar Association is responsible for. but completed in two. The first year is pursued at the University of the West Indies (UWI) Mona. Lawyers can be prevented from practicing (debarred) for very grave offences. Discipline The legal profession in Jamaica is self-regulatory. . The usual course of training is completed in two stages. This is the final stage of classroom training. such as defrauding a client. and will test students on matters they will have to deal with in practice.

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Professional Misconduct in the English Speaking Caribbean .

An attorney may commit professional misconduct by failing to “… fulfill his duty. However this does not mean that attorneys are not expected to observe standards of professional conduct. are derived from common law principles. it was noted that: Unprofessional conduct is not limited to cases where the misconduct charged amounts to an indictable offence or is professional in character but extends to all cases where the solicitor’s conduct is improper i.e. It is prescribed by the General Legal Council pursuant to the provision of section 12(7) of the Legal Profession Act 1971. In the matter of Gail Robinson and Beverly Scobie. Other English speaking Caribbean territories have similar Codes/Canons of Ethics. the cause of justice”. The Legal Profession (Canons of Professional Ethics) Rules governs and regulates the standards of professional conduct expected of attorneys – at – law. Only Guyana does not have prescribed rules of conduct. In the Trinidad and Tobago case. Therefore the guidelines provided by common law principles are just as applicable in Guyana. The rules that make up the Codes/Canons of Ethics of other English speaking Caribbean territories. The Canons/Codes of Ethics are just codifications of these principles. in promoting in his own sphere of interest. Solicitors and In the Matter of the Inherent Jurisdiction of the Court. such as to render him unfit to be an officer of the court The standards of professional conduct in Jamaica is governed by the Legal Profession (Canons of Professional Ethics) Rules. The Code/Canon of Ethics provide “ … in effect that specific breaches of the rules contained therein shall constitute professional misconduct and more specifically an attorney who commits such breaches shall be liable to any of the .

” The standard of conduct expected from an attorney is high. The attorney will also be guilty of professional misconduct if he holds a person as a partner.penalties which the Disciplinary Committee and or the court is empowered to impose.” 1. he may still be penalised. Breach of Duty to the Court . Breaches of Duty Constituting Professional Misconduct “It should be noted at the outset that there is a duty on every attorney to report improper or unprofessional conduct by a colleague to the Law/Bar Association or other appropriate tribunal save where the information relating to improper or unprofessional conduct is received in professional confidence. when that person is not qualified. Breach of Duty to State and Public An attorney is guilty of professional misconduct if he advises or assists in the violation of the laws of the state. 2. The duty to the state and public is also breached if an attorney enters into a partnership concerning the practice of law with non – qualified bodies or persons. associate consultant or attorney – at – law. Therefore even though an attorney may do something that is not automatically punishable as professional misconduct. For instance Canon I (b) of the Code of Ethics states that: An attorney shall at all times maintain the honour and dignity of the profession and shall abstain from behaviour which may tend to discredit the profession of which he is a member.

viii. knowingly submitting in court a document that has not been properly stamped as required by the relevant law. using improper evidence. making unfair remarks to the jury. Breach of Duty to Client In General . privately discussing a pending case with the presiding judge”. iv. 3. taking part in the creation of evidence known to be false and using perjured evidence or testimony. knowingly and deliberately allowing a client to swear to an affidavit which is false.An attorney is an officer of the court. and ix. deliberately acting without authority. ii. Therefore an attorney is under a duty to help in the administration of justice. iii. “attempting to influence the court by e. deliberately making a bad point in order to mislead the court. writing letters to the court which are improper. vi. Some examples of breaches of the duty to the court are: i. He is expected to be respectful to the court and to avoid undignified or discourteous conduct. abusive or threatening that are meant to influence the judge “ … to adopt a cause he would not otherwise pursue”. vii. The attorney only becomes guilty of professional misconduct if he acted dishonestly.g. which is degrading to the court. deliberately making false accusations against a judge or magistrate. v. using irrelevant evidence.

depending on his client’s decision. In such circumstances an attorney – at – law will not have acted improperly if he acts for a party who pursues a claim or defence that will obviously fail. “He should therefore avoid making bold assurances and beware of rash and confident guarantees especially when his employment depends on these assurances. before he has obtained full knowledge of the facts.” This means that an attorney must be candid with a client about the likelihood of failure or success. He must not allow his client to embark on useless litigation. to represent him honestly. because he had not explained the legal implications of giving or failing to give evidence at trial. It should be noted however that clients are free to reject this advice and insist on litigation. particularly when the prospects of success are non-existent.” For instance in Sankar v. a Trinidad and Tobago case. An attorney will be guilty of professional misconduct if he attempts to advise. Another general duty of an attorney relates to his acceptance of a retainer. The State. He had failed to give options to the client. competently and zealously and endeavour to obtain the benefit of any and every remedy and defence which is authorised by law. would feel obliged to withdraw. an attorney – at – law must not induce his client to settle against his wishes by misrepresentation. even if he. In Particular “An attorney is inter alia guilty of professional misconduct vis-a-vis his clients in the following specific instances: (i) Confidentiality .“An attorney is under a duty to always act in the best interest of his client. However on the other hand. the Privy Council found that a defence lawyer had failed in his duty.

whether acting as a solicitor or barrister. In failing to exercise due care and skill in the conduct of his duties an attorney may be guilty of professional misconduct. fraud or other unlawful transaction. (v) Duty to Exercise Care and Skill An attorney is under a general duty to act expeditiously in dealing with his client’s matters and to bring to the discharge of his duties thereunder. (ii) Conflict of Interest Where he acts in any manner in which his professional duties and his personal interest conflict or are likely to conflict. (iv) Fees Where he charges fees which are unfair and unreasonable or where he charges fees which are either an over or underestimate of the services rendered. he acts or continues to act where the interest of representatives clients are likely to conflict or his professional judgement is likely to be impaired. This Misconduct may. This may be as a result of failure and .” (a) Professional Misconduct of a Compensatory Nature – Wasted Costs in Proceedings If a lawyer. depending on the facts of the case.Where he fails or neglects to preserve the confidentiality of his client except if such communication has been made in furtherance of a crime. (iii) Multiple Representation Where in the case multiple representation. competence and knowledge. the necessary degree of skill. be compensatory or punitive in nature. will be guilty of professional misconduct if costs are needlessly incurred or wasted.

It used to be thought that professional negligence could not constitute punitive professional misconduct unless the lawyer’s actions were dishonourable or morally base. Proceedings were brought before the General Legal Council for professional misconduct. In cases like this the court does not exercise a punitive jurisdiction over the offending attorney. 1979. dated January 27. . an attorney negotiated on behalf of his client with Citibank. the respective Code/Canon of Ethics of the various territories.00 by the former. It is important to remember that negligence “ … might amount to professional misconduct if it was inexcusable. Such action constitutes professional negligence and may also constitute professional misconduct. and such as to be regarded as deplorable…” by other lawyers.default to act competently and/or within a reasonable time. inexcusable or deplorable negligence or neglect. In a letter addressed to the client. In situations like this the court makes an order of costs against the attorney personally. a competent tribunal or the court may exercise its punitive jurisdiction. provides that an attorney – at – law shall not act with unreasonable or undue delay. This is a mandatory rule.000. Citibank proposed a settlement. The attorney did not communicate this proposal until October 1980. One of the grounds of compliant was the breach of Canon IV (s) which states that an attorney “shall not act with inexcusable or deplorable negligence or neglect”. (b) Professional Misconduct of a Punitive Nature “Although there is some variation in the actual wording. In the case of professional misconduct. Forbes. negligence or neglect and in the case of Jamaica. For instance in Witter v. who was owed JA$15.

(ii) It should be noted that the General Legal Council of Jamaica has provided detailed guidelines for the keeping of “… client accounts etc. overcharging and failing to keep proper accounts. any form of fraud or dishonesty committed by an attorney against the interest of his client will be deemed to be professional misconduct. It was pointed out that Canon IV (s) did not require the attorney’s negligence to involve dishonourable conduct or moral turpitude.” 4.” The Codes/Canons of Ethics of the various territories provide that: (i) an attorney must never mingle his funds with those of others.It was argued that professional misconduct had to involve an element of wrongdoing. and an attorney should keep up to date accurate accounts so that his financial position and that of his clients can be distinguished when required. held or paid by the attorney and the payment of interest on client’s money. It was held that Canon IV (s) had been infringed. Breach of Duty to Profession and Fellow Attorneys In General . deceit or moral turpitude. (vi) Fraud/Misappropriation of Client’s Funds “As a general rule. failure to apply a client’s funds for the purpose for which it was intended. This includes misappropriation of clients’ funds. and that he should at all times be able to refund money he holds for others. maintaining of books of assets in respect of client’s money received.

(ii) Touting and Advertising Attorneys are not permitted to advertise. It is also a breach of the Canon of Ethics to tout for custom. fairness and good faith.An attorney must behave towards his fellow attorneys with courtesy. Therefore they are allowed to print calling cards. Criminal Offences In General “Where an attorney commits a criminal offence which in the opinion of the Court or other competent tribunal is of a nature likely to bring the legal profession into disrepute. the . In Particular (i) Undertakings Attorneys must fulfill obligations he has promised to execute in any undertakings to the court as well as to his fellow attorneys. It is illegal whether the attorney does it or is done by someone paid by him. An attorney should not allow the ill feelings of his clients to affect his relationship with his fellow attorneys. However attorneys are permitted to allow dignified identification of themselves as attorneys. letterheads. If an attorney pays or rewards someone directly or indirectly for getting him work he will be in breach of his professional duty. Touting is soliciting for custom fraudulently. Breach of an undertaking constitutes professional misconduct as well as (in appropriate instances) contempt of court. office signs or directory listings. 5.

shut our eyes to the fact that the jury have convicted him of conduct rendering him unfit to be an attorney. Upon proceedings to strike him off the Roll of the Court. Disciplinary Committee or other competent tribunal is satisfied about the facts constituting the crime it will not matter: i. the offence must be of a personally disgraceful character. the commission of which would make the attorney unfit to be a member of a strictly honourable profession. In this regard. ii. All that is necessary is that the offence brings dishonour to the profession generally. On appeal the decision was reversed because the indictment was defective. if it is contended that the attorney was wrongfully convicted. that the attorney was not prosecuted.” All that is necessary for a finding of professional misconduct is that the attorney’s conduct brings dishonour to the profession generally. For instance in the case Re King “… an attorney was convicted at first instance of conspiracy to defraud. In Particular (i) Offences involving Fraud/Dishonesty . iii. and that the attorney was acquitted on a technical defence. it is necessary neither that the offence or crime be of a pecuniary nature nor that the attorney should have been convicted as a practising attorney.commission of the offence shall constitute professional misconduct. Once the Court. Denman CJ said: We must not merely because the indictment is bad in point of law. Further.

Take for instance Lord Esher’s point of view in Re Grey: The court has a punitive and disciplinary jurisdiction over solicitors as officers of the court which is not exercised for the purpose of enforcing legal rights but for the purpose of enforcing honourable conduct on the part of the court’s own officers. embezzlement. forgery. frauds and conspiracy to pervert the course of justice. obtaining money by threats. Examples of such offences include knowingly permitting premises owned by the attorney to be used as a brothel. Such offences include bribery. making false affidavits. (ii) Offences Involving Immoral Conduct This is a second class of cases in respect of which disciplinary sanctions may be imposed against an attorney. . bribery. acts of indecent assault and using threatening or abusive language intended to provoke a breach of the peace. be affected by anything which affects the strict legal rights of the parties. It is important to note that the court’s punitive jurisdiction over an attorney in disciplinary matters is completely different from the legal rights and remedies of a client or those that other aggrieved parties may have against an offending attorney. The disciplinary jurisdictions of these bodies are both punitive and compensatory. That power of the court is quite distinct from any legal rights or remedies of the parties and cannot therefore.” Professional Discipline: Part I – Punitive Jurisdiction If a lawyer breaches the accepted standards of professional conduct he will be subject to the disciplinary jurisdiction of the court and/or other competent tribunals.An attorney who has been convicted of an offence involving frauds or dishonesty will de facto be deemed guilty of professional misconduct in his capacity as attorney.

The reason is in the Caribbean all attorneys are admitted to practice by the court. Lucia. His action was in response to the objective of the legal representatives from the Disciplinary Committee of the Law Society. Extent and Ambit of the Court’s Inherent Disciplinary Jurisdiction The court’s power to discipline an attorney. Deyalsingh noted that The court’s inherent jurisdiction in respect of solicitors cannot be disputed. to exercise the court’s inherent jurisdiction to discipline the two solicitors. Deyalsingh J found that he had the right and duty as a judge of the High Court. The National Insurance Board (NIB) was a client of the firm of which the two attorneys were partners. without referring to the relevant disciplinary tribunal was considered in the Trinidad and Tobago case of In the matter of Gail Robinson and Beverly Scobie and In the Matter of the Inherent Jurisdiction of the Court. Subsequently a case of wrongful conversion was made against the two solicitors. the court exercises a punitive jurisdiction over all lawyers. Jamaica and to a limited extent Trinidad and Tobago and St. 42 of the Legal Profession Act 21/1986. In this case. NIB had entrusted three million dollars to the firm.With the exceptions of The Bahamas. This means they can fine and suspend lawyers as well as strike lawyers of the Roll. It is the guardian of the good conduct of the profession and it is incumbent on the court to see that the conduct of its’ officers is beyond reproach and punish those whose conduct is unbecoming of the officer. two solicitors were called before the court to show cause why they should not be struck off the Roll of Court. Trinidad and Tobago subsequently codified this punitive jurisdiction of the court in s. The Legal Profession Act of other territories have .

exercised exclusive punitive jurisdiction over barristers. Jamaica. Cap. 12(2) of the Legal Profession Act 1971 expressly provides that: At the hearing of a matter in which a Judge considers that an act of professional misconduct or criminal offence has been committed by an attorney – at – law. 120 was enacted. and six barristers duly appointed by . the court could in cases where there is evidence of criminal wrongdoing. St. Alternatively.also inserted an equivalent provision. is for the judges to make or cause the Registrar to make a report to the relevant Disciplinary Tribunal where evidence of misconduct is brought t it’s attention at the hearing of the matter or other proceedings in court. Lucia and Guyana. Lucia all have similar provisions in their respective Legal Profession Acts. However Karen Nunez – Tesheira writes that regardless of the court’s inherent jurisdiction “ … the proper course for the court to adopt. This law established a Disciplinary Committee of the Bar Association comprising inter alia of the Attorney General as an ex officio member. report the matter to the office of the Director of Public Prosecution (DPP).” As a matter of fact s. Trinidad and Tobago and St. The Exercise of the Court’s Punitive Jurisdiction in Jamaica “Barristers Prior to 1960. Antigua & Barbuda. he may make or cause the Registrar to make an application to the Committee in respect of the attorney – at – law. they are Barbados. The Bar Regulations Law. Antigua & Barbuda. the Judges of the Supreme Court. However in 1960. Barbados. except in the most urgent and exceptional cases.

The Council was charged with the general duty to uphold the standards of professional conduct of attorney – at – law and in particular. or (iii) may vary the order. or strike off the Roll. 16 of the Legal Profession Act. 35(2) on the hearing of an application. or . Right of Appeal Pursuant to s. or may allow the appeal and set aside the order. reprimand. the Legal Profession Act was enacted. In accordance with s. was given the full punitive powers as previously enjoyed by the respective Solicitors and Barristers Disciplinary Committees. a Solicitors Disciplinary Committee was established in 1941. including the power to fine.the Governor on the recommendation of the Bar Association. The Committee was given full punitive powers. the Committee was given the power to inter alia remove from. The Court of Appeal: (i) (ii) may dismiss the appeal and confirm the order. This Act inter alia fused the legal profession and established the General Legal Council as the disciplinary body for the newly fused profession of attorneys – at – law. suspend and to debar a barrister – at – law from practice. an attorney has a right to appeal to the Court of Appeal against any order made by the Committee. 363. Current Position In 1972. Solicitors Pursuant to the Solicitors Law Cap. the name of the solicitor to whom the application relates and to suspend the solicitor from practice.

and former Deputy Minister of Justice of Jamaica. 17(1) specifically provides that no greater punishment shall be inflicted upon the attorney than was inflicted by the order made on the first hearing. This means that the court or disciplinary tribunal of a territory can discipline an attorney for acts of omissions or dishonesty committed locally as well as abroad. He then moved to Canada to live and work between 1977 to 1985. and he lied on his application for employment with the Federal Government. McCalla was admitted to practice in Jamaica in 1962. Where it makes an order for the rehearing of an application. The General Legal Council then discovered that McCalla had been struck from the Roll in Canada because: (i) (ii) he published as his. He held himself out as a Q. . the order takes effect from the date of the order made by the Court of Appeal confirming it. The authority confirming the courts extra – territorial jurisdiction is McCalla v. his name was still on the Roll in Jamaica. In the meantime. The Disciplinary Committee of the General Legal Council.(iv) may allow the appeal and direct that the application be re-heard by the Committee. The facts of McCalla are as follows.C. In Canada he was admitted to practice by the Ontario Bar. the work of other persons without their permission. Where the Court of Appeal confirms the order whether with or without variation.” Ambit of Punitive Jurisdiction – Is it Extra – Territorial? The punitive jurisdiction of the court extends to misconduct committed extra – territorially. He returned in March 1985 and resumed practice. s.

disciplinary proceedings against McCalla were commenced by the General Legal Council. At the Court of Appeal. was to have McCall struck off the Roll of the Court of Jamaica. It is specifically incurred when an attorney acting as a solicitor/instructing attorney in the course of court proceedings cause costs to be improperly incurred or wasted because of undue delay or by misconduct or default or without reasonable cause. Indeed it would be ludicrous in the extreme if a Jamaican attorney were allowed to roam the world conducting himself in a manner which breaches the rules of conduct which govern the profession of which he is a member and be allowed to maintain that he is not subject to the sanction of those rules because his conduct was outside Jamaica. The purpose of the proceedings. although the court generally uses this disciplinary jurisdiction in a compensatory capacity. But it is only exercised in restricted circumstances. This sometimes means that the attorney pays the costs of the other side.Taking into consideration the results of its’ own investigation as well as the charges that had caused McCall to be struck from he Roll in Canada. However. which were initiated by the Chairman. In other cases the attorney can be ordered to pay the costs of both parties. Professional Discipline: Part II – Compensatory Jurisdiction The compensatory jurisdiction of the court is exercised by the court making an order of costs against an attorney personally. Wright JA had the following to say about the General Legal Council’s entitlement to uphold standards of professional conduct: There is no qualification attached thereto. there is also a . This compensatory jurisdiction is exercised exclusively by the court.

This is because the solicitor will have to pay a bill that would ordinarily be paid by one of the parties to the litigation. Therefore a solicitor can incur the court’s compensatory jurisdiction. The new rule has already been applied in the case of Sinclair Jones v. even though a solicitor has not incurred extra costs because of a serious dereliction of duty or serious misconduct. Therefore gross negligence or gross neglect will not invoke the courts compensatory jurisdiction. An order will not be made against the attorney for personal payment of costs if his improper act or omissions falls short of a serious dereliction of duty. Professional Discipline: Part III – The General Legal Council Constitution and Membership The General Legal Council was constituted under the Legal Profession Act 1971. Negligence/Default – What Conduct is Sufficient? Where the attorney’s conduct is a serious dereliction of duty that causes extra costs to be incurred. It should be noted though. if he has unreasonably or improperly incurred extra costs or has caused extra costs by his incompetence. that the rules in England have changed. Under s. he can still be asked to pay wasted costs personally. 11 the Disciplinary Committee consists of a minimum of 15 persons. the ability of the court to order costs also acts as a deterrent. the compensatory jurisdiction of the court will be invoked. Kay. It should be noted that costs can be ordered against as attorney even though he is no longer on record. The General Legal . As the solicitor will want to avoid this expense. as well as the adverse publicity. Now.punitive element.

A formal application is made by the complainant to the Disciplinary Committee in the prescribed form. The application should be submitted to the Secretary of the General Legal Council. and iv. Under the Act. ii. the Council will appoint one of the members of the Committee as Chairman. It is as follows: 1. The applicant should set out the facts by affidavit (s). This is usually done by a client.” Under r. members of the disciplinary committee can be: “i. For the sake of speed in the investigation or the hearing of complaints made against attorneys the Committee usually sits in two or more divisions. attorneys who were members of a former disciplinary body. members or former members of the Council. . they also need a quorum of three members before they are able to act. iii. but may also be done by an aggrieved person. Each committee is required to appoint its’ own Chairman. Procedure The procedure for the exercise of the General Legal Council’s disciplinary powers is set out in Schedule Four of the Legal Profession Act 1971. 2. current or former holders of high judicial office. 2 of the Third Schedule of the Act.Council appoints them. attorneys who have been in practice for not less than ten years.

6. 4. the application also calls upon the attorney to answer the allegations set out in the affidavit. 5. The Disciplinary Committee carries out investigations into the allegation. . The Disciplinary Committee will notify the applicant and the attorney of this decision in writing. In compliance with the Notice the attorney is required to file and serve the requested documents and copies on the Secretary of the Disciplinary Committee and on the applicant. Either party may inspect the documents contained in the list furnished by each other. If the Disciplinary Committee finds that there is no prima facie case it will dismiss the application without requiring the attorney to appear to answer the allegation. 7. the application to the Apart from setting out the grounds for complaint. The Marshal of the Court will serve the Notice of the hearing and copy of the affidavit to the attorney. At this stage the Disciplinary Committee may require further documentary proof relating to the allegations. The Secretary will send Disciplinary Committee.3. It includes a request for a list of documents including affidavits on which the attorney will rely in answer to the allegations. The complaint will be referred to the DPP if the complaint is of a criminal nature. However if a prima facie case is made out the Disciplinary Committee will fix a date for the hearing of the application. The Notice takes a prescribed form.

Professional Discipline: Part IV – The Record of Professional Discipline in Jamaica “Figures for the past nine years were made available and according to the figures supplied by the General Legal Council. than it is the pursuit of justice. This is not surprising since allegations of misconduct involve elements of deceit or moral turpitude. The Disciplinary Committee may act in whole or in part upon the evidence given by the affidavit. in the English – speaking Caribbean. For the period 1995 – 2000. But the traditional role of lawyers is to represent his client’s best interests to the court. Karen Nunez – Tesheira writes that generalisations should be avoided. the number of complaints made to the General Legal Council averaged 240 per year.Hearing Applications are heard in private. People feel that self-regulation is tantamount to trying the Devil in Hell. The hearing is conducted in conformity with the rules of evidence of a normal court hearing. is well grounded. If it is required the Disciplinary Committee may summon deponents to give oral evidence. two attorneys have been suspended. Therefore the standard of proof is high. . one reprimanded and twenty-four fined”. Standards of Proof The standard of proof required goes beyond a balance of probabilities. seven removed from the Roll. But that the cynicism that the public feels towards legal professional discipline. Role Today law is very much a business. between 1992 – 2000.

which has specific provisions on this score. Because of this the English – speaking Caribbean territories have adopted The Code of Conduct for the Bar of England and Wales 1990. it is important to remember that lawyers are officers of the court. whether as prosecution or defence counsel are set out in the Code/Canon of Ethics of the territories. Also the role and duties of attorneys overlaps with professional misconduct. both have an overriding duty to the court. General Duties of Prosecution and Defence Counsel The duties of prosecution counsel are wider in scope than that of defence counsel. The role of the prosecution is to seek justice. Duty to Court in General . Defence counsel must be zealous in the defence of his client and he must try to obtain the best remedy. The Code/Canons of Ethics outline these duties. As officers of the court. the breach of which constitutes professional misconduct. which is legally available to him. Their primary allegiance is therefore not owed to their client. Here we look at the role and duties of advocate attorneys in relation to the conduct of court proceedings. The Codes/Canons of Ethics are however silent with respect to confessions of guilt. but to the bench.This said. which is a broader obligation. In criminal cases the prosecution must use every legitimate means to bring about a just conclusion. The Role and Duties of Advocate Attorneys Introduction In the Caribbean the roles and duties of attorneys.

to act in his or his client’s favour. Also an attorney . He should inform the courts of the estimated length of proceedings before the court when asked by the court. an advocate attorney shall maintain a respectful attitude to the court in the discharge of his functions and responsibilities. He should also be concise and direct in trial and in the disposition of cases. lend or promise anything of value to the judge(s) when conducting proceedings before him. consistent rude.Whether prosecution or defence. (ii) (iii) is required to reveal authorities or documents which are disadvantageous to his client. Consequently an attorney: (i) shall not make scandalous statements or statements which are solely intended to insult or intimidate witnesses or other persons. In the Bahamas. if he is required to make them available by the law or professional standards. even though it has not punished as contempt. disruptive and provocative behavior can invoke discipline. He should not attempt to privately influence him directly or indirectly. Also when relying on authorities in support of his cases he is required to ensure that the decision has not been overruled. shall as an officer of the court and in the administration of justice be punctual when attending court. Canon V (a) of the Canon of Ethics requires that an attorney does not behave in a manner that is degrading to the court. His conduct must be dignified and courteous. He should also inform the court of any changes that might affect the estimated length of proceedings. Duty to the Court in Particular (i) Judges Counsel should never give.

” (c) (iii) Witnesses Attorneys are under a duty not to withhold facts or secret witnesses in order to show the guilt or innocence of the accused. But they can pay reasonably incurred expenses as well as reasonable compensation for loss of time in testifying in court as well as time taken to prepare for testimony. make any attempts to curry favour with juries by fawning. except where authorised by law or the practise in the court or in the normal course of proceedings with a judge or person exercising judicial functions.must not wilfully make false accusations against a judge or other judicial officer. an attorney shall not: (a) (b) give lend or promise anything of value to a juror where there is a matter pending in which he is engaged. but he should only be paid a reasonable fee for his professional services. An attorney must not appear as a witness for his client except in formal matters where his appearance is essential . Attorneys must not pay witnesses or offer to pay witnesses for giving evidence. He should not advise witnesses to make themselves unavailable to the court. flattery or pretended concern for their personal comfort. Attorneys must not abuse. for instance by leaving the court’s jurisdiction. This also applies to expert witnesses. Communicate with a juror as to the merits of such proceedings. (ii) Jurors “With respect to jurors. harass or intimidate witnesses.

(b) (c) (d) Duties of Defence Counsel “Every counsel has a duty to his client fearlessly to raise every issue. Therefore if it is necessary for an attorney to be a witness in a formal matter. must not knowingly make a false statement of law or fact. He should also avoid implying things about the other party or witnesses when he has insufficient information to that effect. the conduct of the case should be entrusted to another attorney. (iv) Perjured Evidence/Fraud/Illegal Conduct As an officer of the court an attorney must never knowingly mislead the court. and must not help or advise his client or a witness in fraudulent or illegal conduct. If he knows that this has been done with the intention of misleading the court he must disclose this to the court or promptly cal on a witness to rectify the same. Also.to the ends of justice. court or other tribunal that a particular state of facts exists. . however distasteful which he thinks will help his client’s case.” However as an officer of the court. must not knowingly present to a judge. An attorney: (a) must not knowingly use perjured or false evidence. he is not to act as advocate in any appeal to the decision of the proceedings in which he was an attorney. advance every argument and ask every question. he must not help create or use evidence which he knows is untrue. his overriding duty is to the court in the administration of justice.

However he should endeavour not to declare his personal belief in the innocence of his client neither in argument to the court or when addressing the jury. In the situation where a client does confess to a crime an attorney must consider two facts. and (b) the stage at which the confession is made.” What happens if a client confesses his guilt to his attorney? Attorneys have a duty to their clients to maintain client/attorney confidentiality. defence counsel must endeavour to protect his client from being convicted except by a competent tribunal upon evidence which is sufficient to support a conviction for the offence with which the client is charged. irrespective of any belief or opinions which he may have formed as to the guilt or innocence of his client. Therefore he must not knowingly mislead the court and he must not lie to the court. In so doing he must not assert that which he knows to be false or set up a case inconsistent with the information given to him by the client. Counsel also must not declare personal knowledge about any facts in the matter being investigated. (a) whether the accused’s confession of guilt is clear and unequivocal. . nor is he to declare his belief in the justice of his cause. (i) Defending a Client Accused of a Crime “When defending a client accused of a crime.It is the duty of defence counsel to seek justice. On the other hand every attorney is an officer of the court with an overriding duty to the court.

Where the confession is made before the commencement of proceedings The attorney may withdraw from representing the client if he confesses before proceedings have started. the attorney should continue to act. which are imposed by his client’s confession (we will look at these below). He should therefore seek to avoid direct examination of his client. . defence counsel may not protest his client’s innocence nor set up an affirmative case consistent with the client’s confession by e. he may not recite or rely upon the client’s false testimony in his arguments. However he must act within the strict limitations. In particular. Where the confession is made during proceedings If an attorney wants to withdraw in criminal cases. Limitations Imposed on Client on Conduct of Case “Although defence counsel should not reveal the client’s perjury he must at the same time avoid any involvement in the client’s perjury. However he must explain all the possible consequences. However if proceedings have commenced and an attorney’s withdrawal would compromise his client’s position. In addition he cannot make a plea in mitigation. he must seek the court’s leave. asserting or suggesting that some other person committed the offence charged or by calling any evidence in support of an alibi intended to show that the accused is taking the stand against his advice. he shall not argue to the jury the accused’s known false version of the facts. But if the client is going to plead guilty the attorney may still act. If the client insists on pleading not guilty an attorney may still continue to act. Whether leave is granted is in the court’s discretion.g. he must explain that restrictions will be placed on the conduct of the defence (these will be considered below). In particular.

However the Canon of Ethics. inter alia. In attacking the evidence for the prosecution. (c) where a client has committed fraud during proceedings but will not rectify or cannot rectify the matter when asked to by counsel. inter alia. the form of the indictment and the admissibility or sufficiency of the evidence. but he should go no further than that. Canon IV (q) lists the general circumstances in which an attorney can withdraw his services from an undecided case before the court or other tribunal. cross – examination or in his speech to the tribunal and to argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offences charged. he is entitled to test the evidence of each individual witness for the prosecution by. They are: (a) where the attorney cannot conscientiously represent a claim or defence that the client insists upon. the attorney may nevertheless present a technical defence by. objecting to the competency of the court. . (ii) Disclosure of Previous Conviction of Client Defence counsel is under no duty to disclose the fact that a client has a previous conviction if the prosecution has lead the court to believe that the accused client has no previous conviction. (b) where the client wants to pursue an illegal path or deceive the court.Although defence counsel is severely restricted in the conduct of the accused client’s defence in cases where the client has confessed his guilt. (iii) Withdrawing from case Counsel can refuse to act for a client who has confessed guilt but is still determined to plead not guilty.

(d) (e)

where to continue acting is tantamount violating a law or disciplinary rule; “where the client by any other conduct renders it unreasonably difficult for the Attorney to carry out his employment as such effectively or in accordance with the judgement and advice of the Attorney, or the Canon of professional ethics”; and where counsel cannot carry out his services effectively for any other good and compelling reason.

(f)

Duties of Prosecution Counsel Prosecution counsel is expected to act fairly and dispassionately. The reason is he is exercising a public function that is discretionary and which gives him power. His primary duty is to assist in the administration of justice. He should ensure that a case is conducted properly efficiently and in a reasonable time. It is not his duty to represent any person. It is important to note that it is not the duty of prosecution counsel to obtain a conviction by every means at his command. Prosecution counsel must present the case fairly and impartially. Counsel is also to ensure that the jury is also briefed on the law relating to the facts. Prosecution counsel must also male disclosures to the defence counsel (or to the accused) in a timely fashion. If the accused is not represented disclosures should be made to the court. Disclosures should include all the facts and all the witnesses known to prosecution counsel. This should be done whether or not the disclosures tend towards the innocence or guilt of the accused. Therefore prosecution counsel must: (a) make promptly available to the defence all witnesses and relevant statements; and the

(b)

to determine what evidence is necessary and write exactly what is necessary so as to send it to the defence counsel as soon as necessary.

If prosecution counsel finds that there is no evidence or so little evidence as to make it dangerous to leave the case to the jury, he is under a duty to tell the court of his view. He should ask leave to withdraw from the prosecution. “It is quite wrong of counsel to accept any instructions to go on with a prosecution, once he has formed a view that the prosecution should not continue.” Prosecution must not withhold evidence that proves the guilt or innocence of the accused. Also in the settling of indictments prosecuting counsel should act promptly. He should also refrain from overloading it with too may defences or too many counts. Prosecution counsel should not attempt by advocacy, to influence the court in sentencing. If the defendant is unrepresented, prosecution counsel is duty bound to inform the court of mitigating circumstances he is

6.

Legal Aid Legal Aid in Jamaica

The United Kingdom experience development of legal aid in Jamaica.

has

influenced

the

Legal Aid in Criminal Cases Provisions were made for legal aid in criminal cases as early as 1872. It allowed for the payment of three guineas per a day to a “barrister, advocate or attorney” assigned by a circuit court judge to defend a poor person charged with a capital offence. In 1938 the Poor Prisoners (Capital offences) Defence Law (1938) tried to establish a system of legal aid for prisoners. Further to this the Court of Appeal Law (1952) (along with establishing the Court of Appeal of Jamaica) empowered the court to assign a “solicitor and counsel or counsel only” if the court was satisfied the prisoner was in need and it was in the interest of justice to do so. The Poor Prisoners Defence Law of 1961 repealed the 1938 law. The 1961 law widened the scope of legal aid under the criminal law. A person charged with manslaughter, rape and infanticide amongst others could obtain a legal aid certificate. However it was (is) difficult to obtain a certificate. For example in the period January 1972 to October 1973 only fifty certificates were granted out of one hundred and ten applications. Legal Aid is available for criminal matters today under The Legal Aid Act 2000. Under s. 15(1) “legal aid may be granted to any person who is detained at a police station or in a lockup, correctional institution or other similar place …” Legal Aid in Civil Cases Legal aid is available in the Resident Magistrate’s courts and in the Supreme Court. Under s. 16 of the Legal Aid Act 2000 anyone in need of legal services in any civil cause or matter

may apply for legal aid if he or she cannot afford to defray their legal costs. The Judicature (Resident Magistrates) Act 1928 governs the granting of legal aid in the resident magistrate’s courts. The assistance provided is very limited. If leave is granted, a poor person will be given the right to sue in forma pauperis. The applicant must satisfy the court of his poverty, by submitting an affidavit. He should also obtain a certificate signed by a Justice of the Peace, a clergyman, or a minister of religion vouching for the applicant. It is worth noting that the Norman Manley Law School under the auspices of the Council of Legal Education operates a Legal Aid Clinic. The clinic used to train students but is also operated for the benefit of poor members of the public. A BRIEF OVERVIEW

The Legal Aid Act was passed in 1997 and came into operation on May 1, 2000. Two programmes are currently operated: 1. Duty Counsel at Police Stations; and 2. Legal representation in the Criminal Courts throughout the island. Regulations and Forms have been promulgated and procedures to be followed set out; these have been refined

by two years of operations.

1.Duty Counsel

Under this scheme, the Council provides the service of a Counsel to persons who are being held at a police station, lock up, correctional institution or any other place where he/she is being held or detained before a court appearance; Counsel gives legal advice to that person who is detained or accused of an offence; attend an identification parade if one is to be held; be present at the taking of a Cautioned Statement if one is to be taken or at a questioning by the police whether the questioning will be recorded by the Police or not; to make representation for bail at the lockup; and to represent the citizen as Counsel on his first appearance in court.

2.Legal Aid in the Courts: Resident Magistrate’s Courts, Circuit Courts, Gun Courts and the Appeal Court.

When an application is made and granted by the appropriate authority, the Council provides Counsel to conduct the defence on behalf of the accused. The fees paid for these services vary depending on the seniority of Counsel, the offence and the court before which the accused is tried.

7.

The Ombudsman – role and functions. The Office of the Ombudsman

Role The office of the Ombudsman is the most popular alternative dispute mechanism in the Commonwealth Caribbean. The Ombudsman addresses abuses which are not convenient for resolution at court or which the court cannot adequately handle. Our society has become more bureaucratic and the executive and regulatory power of the ‘administrative State’

encroaches on our lives. This threatens our rights and liberties. The role of the Ombudsman is to protect citizens against the abuses of public administration as well as their errors and inefficiencies. Amongst other things, the Ombudsman office can serve in an explanatory or mediating role. This service is needed because in general Caribbean societies do not participate in constitutional politics. Consequently the government is remote from the governed. The International Bar Association defines the office of the Ombudsman in the following way: “An office provided for by the constitution or by action of the legislature or Parliament and headed by an independent high level public official who is responsible to the legislature or Parliament, who receives complaints from aggrieved persons against government agencies, officials and employees or who acts on his own motion and who has the power to investigate, recommend corrective action and issue reports.” The office is investigatory and it aims to address relevant complaints. To achieve this the Ombudsman has wide powers and protection. In Jamaica the office of the Ombudsman is set up by the Ombudsman Act (1978). Functions “The Ombudsman’s function is called into operation where a citizen or body of citizens suffers an injustice due to a fault in administration or from administrative action or inaction.” He may conduct investigations in two sets of situations: 1. 2. when an individual or a body of persons complain; or on his own initiative.

Parliament can refer complaints to the Ombudsman if Parliament thinks that there are special reasons that make such an investigation desirable in the public interest.

if there are ‘special reasons’. the Ombudsman does not have jurisdiction in those cases. However. judicial proceedings. 12(3)(a) of the Jamaica Ombudsman Act (1978) the Ombudsman can investigate a matter where the complaint has or had a judicial remedy or remedy for a tribunal. He may deny jurisdiction on grounds of triviality (deminimis rule). This includes advice given to ministers. In Jamaica the Ombudsman is allowed to comment on legislation and there appears to be no limitation as to investigating policy.The Ombudsman’s investigation should be guided by public interest. The matters to be investigated include injustice and maladministration. In Jamaica he can investigate matters relating to the police. 12(1) – (5) & s. In other territories Ombudsmen are not allowed to scrutinise investigating policy. promotions or disciplinary controls etc in regards to any person. The Ombudsman’s principal function is to investigate administrative decisions or recommendations of government departments or authorities. Under s. personal and other situations where there is redress for a breach of fundamental rights. provided that the Ombudsman is satisfied that it is not reasonable for the complainant to take or have taken such proceedings. removals. 25 of the Constitution. The Jamaican Ombudsman is not prevented from investigating a matter that the complainant could apply to court to resolve under s. The Ombudsman can also investigate matters taken to a Service Commission about appointments. he may exercise a retained discretion to investigate the case. frivolity. If the complainant would have a legal remedy. bad faith or remoteness of interest. .

. The issue of constitutional reform is now married to the future of the Privy Council and consequently the creation of the Caribbean Court of Justice.8. There have been cries from commentators ad politicians for review of the constitutions. At least two countries in the region are distancing themselves from their colonial past (Jamaica and Barbados). the issue is likely to be dealt with as a political independence that the region as a whole enjoys. however. Law Reform and Law Revision Law reform and law revision in the Commonwealth Caribbean has to be viewed from the constitutional/colonial context.” _____________________ Students are instructed to read Chapter Thirteen of Commonwealth Caribbean Public Law by Professor Albert Fiadjoe. “At the end of the day.

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