Unit One - Module One - 04 - 05 (1)

Caribbean Legal Systems

CARIBBEAN EXAMINATION COUNCIL

CARIBBEAN ADVANCED PROFICIENCY EXAMINATIONS (CAPE)

PUBLIC LAW

UNIT 1 MODULE 1: CARIBBEAN LEGAL SYSTEMS

The following was compiled because students undertaking the CAPE Law Unit One Examination are in desperate need of a textbook1. Most of the information was culled from Rose-Marie Belle Antoine’s outstanding work Commonwealth Caribbean Law and Legal Systems. However the compiler also used other sources which are acknowledged in the footnotes, students are urged not to ignore them. The compiler paraphrased Antoine’s work so as to tailor the compilation2 to the needs of Caribbean Advanced Proficiency Examination level students; the compiler in no way intended to subject Antoine’s work to derogatory treatment. The following is not the compiler’s original work.3

DLS (October 2004)

A legal system comprises of “the body of legal rules, legal institutions and machinery which operate within the particular country or jurisdiction”.4

1. Law5:

“There are four popular definitions of Law:

1. the legislative pronouncement of rules to guide behaviour;

2. those rules of conduct put in force by legislative authority or court decisions, or established by local customs;

3. an institution which is essential to the social nature of man and without which he would be a very different creature; and

4. the enforceable body of rules that govern society.

1 Please CXC, commission a textbook!2 The compilation also follows the chronological order of the syllabus, a current copy of which all students are begged to obtain3 It follows that students have been provided with the information free of cost4 Antoine, R. (1999) Commonwealth Caribbean Law and Legal Systems. Great Britain: Cavendish Publishing Ltd, p 235 The notes for topic 1 (i) are taken from materials developed for The Caribbean Examinations Council (CXC) (Distance Learning programme) with the assistance of the Commonwealth of Learning (COL) institute. Copyright © 2003 CXC/COL

Montego Bay Community College 1


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. For example … definition #4.

“an enforceable body of rules”

This statement indicates that some rules are enforceable and some are not. Let us consider then, what is a rule.

Rules are normative. This means that rules set a standard of how things ought to be, rather than how they are. For example, “no one should use profane language.” Rules may mandate action, 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. 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.”

(i) concepts, nature, origin, role, and functions;

Concepts of lawConcepts of law are essentially the theories of law. In order for you to understand the different concepts of law, you must first understand the different theories, as propounded by the different legal philosophers. These different theories govern different peoples and societies alike. Concepts of law also extend to different cultural, racial and religious situations. For example, Islamic and Judaic Law. It is worthy that in Islam, the law becomes the religion and thus, the religion becomes the law. Two of the most popular theories of law are natural and positive law.

Natural law and Positive law

(a) Natural law

In Calvin Eversley’s article on “Law, Religion and Morality”, at page 4, of the Guyana Law Review, you may wish to consider the definition of Natural Law, as posited by the legal philosopher, Lloyd who says that … “natural law is believed to be a rational foundation for moral judgment”. Thus, according to Eversley, natural law can be seen as true law that emanates from a divine being.

According to many natural lawyers, natural law is directly connected to, or rather shaped by, those religious, moral, or ethical considerations which are inherently apart part of that “right reason in agreement with nature” as formulated by the early natural philosopher, Cicero.



For the purpose of simplification, 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.

(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, or accepted procedures for law-making.” According to Eversely; “Kelsen [a positivist] best epitomises this view in the formulation of his pure theory of law.”

Positive law is the law created by the sovereign and which must be obeyed even if and when it is unjust or repressive. Also, it is not acceptable for the citizen to reject or refuse to obey an unjust law so long as it remains in force, rather it is for the sovereign itself or Parliament to change the unjust law.

Nature of lawAccording to Wollheim, “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. The nature of law therefore, may be characterized by its rules that seek to create and maintain order in society. In other words, the nature of law is to be found in its normative rule-making content.

The law seeks to create and maintain the conduct desired of society. That is why the law lays down the procedure for doing things and sometimes attaches a penalty for non-performance of a particular act.

Origin of law

(a) The English Perspective

Before the Norman Conquest, which occurred during the 11th century A.D., England did not possess a unified legal system. Different areas of the country were governed by different systems of law, often adapted from those of the various invaders who had settled there. Thus, the law of England was fragmented and varied form place to place. The King had little control over the country as a whole, and there was no effective government.

When William, the Conqueror gained the English throne in 1066, he established a strong central government and began, among other things, to standardise the law. Eventually it was decreed that there would be one law common to all of England, hence the name ‘common law’.



(b) The Caribbean Perspective - Reception

When the Europeans came to the West Indies they brought with them their laws which they imposed upon the natives, then the slaves and eventually upon the indentured servants.

The laws that were known to the native Indians, 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. For instance, in Guyana, 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. Reception in the territories listed below is governed by:

Antigua: The Supreme Court of Judicature Act, Cap 81

The Bahamas: The Declaratory Act, 1799

Barbados: The Supreme Court of Judicature Act, Cap 117, section 31 and 37

Jamaica: The Interpretation Act, Cap 165, section 37

Trinidad and Tobago: the Supreme Court of Judicature Act, Cap 4:01, section 12

Caribbean territories were ruled at different periods in the region’s history by different European nations; for example, the Spanish, the French, the Dutch and the English. Guyana was ruled by the French and the Dutch, then lastly the English. Trinidad was ruled by the Spanish, then the English and St. Lucia by the French, then the English. As a consequence, Guyana and St. Lucia have inherited a hybrid legal system. Guyana has certain aspects of Roman Dutch Law that is practiced alongside the English Common law and St. Lucia has retained certain aspects of the French Civil Code that is practiced alongside the English common law.

Role and function of lawThe role and function of law is to bring cohesion to, and maintain order within societies. William, 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, thereby, improving it and rendering it more efficient. 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.

The romantic or utopian view of the function of law is that it regulates human behaviour to achieve a well-ordered and cohesive society. However, 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, administration or government.

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, more or less, the same physical strength and intelligence, and both our powers of self-restraint and willingness to help others are limited. 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, leads to the development of such rules, protecting the property and person of others. It also leads to the idea that observance of the rules must be guaranteed by some kind of penalty directed at the rule breaker.

Hart maintains that such rules are the minimum necessary content of law in any society.

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, (1999) at page 12, 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, 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 slave system by guaranteeing the economic, social, and racial subordination of the Negroes.

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. A slave was considered chattel. Thus the 1674 law of Jamaica described slaves as goods and chattel. Slaves were also referred to with reference to their collective weight. For example, ‘a ton of slaves’.

Legally, a slave was barred from owning property and a Jamaican law of 1711 excluded slaves from owning almost anything at all, for example, livestock and important agricultural products like sugarcane, coffee and cotton.

(ii) relation with morals, religion, and ethics.

Law Religion Morality and Ethics

Before we can consider law’s relationship with morals, religion and ethics we have to look more closely at how different schools of Jurisprudence define ‘law’.



According to natural law theorists ‘law’ is “good law”. Good law refers to a minimum moral or ethical content of law. Cicero6 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.

“Cicero, in defining “true law” as “rights reason in agreement with nature”7 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.”8

Natural law is viewed as the foundation of moral judgment. Because the rules that govern our good conduct are connected with basic truths about human nature. For example most people can kill a kitten with no effort because we are stronger – but most of us don’t. The reason is we know that such an act would be morally depraved. Views about the exact nature of natural law have varied over the ages, but there has been one constant. That is, there are some principles which are governed by the nature of the universe and which are discernable by reason.

“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, abused in practice, or defied in practical thinking. An appropriate analogy are mathematical axioms which hold good even when misunderstood or undiscovered.”9 Therefore law is shaped by religious, moral or ethical considerations, which are apart of ‘the reason that is in accordance with nature’.

How do we know if a particular human or positive law is true natural law? For instance in the abortion debate, the right to life and the right to privacy or freedom of choice, can both be considered as natural law rights. Eversely proposes that the right answer is consistent with the “right reason in agreement with nature”10, must lie in proper limitations of one or both of these two great natural law rights.”11

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

6 Cicero, Marcus Tullius (106 – 43 BC) Roman orator and statesman. He was one of the most influential authors in Latin literature7 Cicero’s “De Re Publica” as quoted in Freeman’s “Lloyds Introduction to Jurisprudence” (6th ed., 1994) pp130 -1318 Eversley, C. Law Religion and Morality [1999] 1 Guy L. R. 3, p 49 Freeman, M. (Eds.). (1994) Lloyds Introduction to Jurisprudence 6TH Edition. Great Britain: Sweet & Maxwell, p 8010 Ibid Footnote 4 (Cicero)11 Op cit, Eversley, p 4



divine, believe that there is a pre-existing moral order that governs rationality and materiality.

The positivist approachThe Positivist School of law defines ‘law’ without reference to subjective considerations such as morals, ideology, religion etc. So law is defined with regard to how it was formulated. That is, by conforming to approved and specific law making procedure.

“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. If the latter were not the case, then the edict of the despot or dictator would, from this positivist perspective, be on the same footing as positivist laws validly enacted by a lawful sovereign or democratically elected Parliament.”12

The essence of the positivist approach refers to law that is not informed by what some or even most people consider unreligious, unjust or immoral. 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.”13 This does not mean that positivists do not think of morality religion and justice, they do, but in other non-legal areas. It is just that positivists do not think elements such as morality should not define law because then it loses its’ clarity and definiteness.

“… 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. This choice in turn is not motivated by moral or non-legal considerations.”14 Eversley defines law from a natural law perspective because he rejects laws, which is evil or unjust by reasonable standards of decency.15

Law’s normativityLaw’s inherent normativity refers to an alleged conceptual connection between ‘legal duty’ and ‘ought’. If you say there is a legal duty to do something, it is part of the meaning of what you say that, in some sense of ‘ought’ the ‘thing’ ought to be done.”16

“ The point being made here is that the argument that there exists a moral duty to obey law, however described, is further reinforced by the concession of natural lawyers that even human laws which contravene principles of natural law ought

12 Op cit, Eversley, p 1513 Ibid14 Ibid15 Op cit, Eversley, 1916 Harris, Legal Philosophies, (2nd ed, 1997) p 523



to be obeyed ‘to avoid scandal’. Thus there must be something in the nature of law which would compel obedience even if terms might be positively unjust.”17

The relationship of religion to law and morality“There are some who see religion, law and morality, as one indivisible whole with religion, where it represents a true expression of divine will, being the foundation of them all. To the natural lawyer who believes that divine will is the basis of all good law (natural or positive), there exists no validly logical distinction between religion, on the one hand, and law and morality on the other hand. Legal Positivism admits of no such logical connection, either in a causative or imputative sense. Religion is an irrelevant criterion to the positivist lawyer when it comes to defining law.”18

It is only since modern times that men have regarded law as man-made and therefore to be judges on human terms. Before then law, morality and religion formed a coherent whole.

Islamic jurisprudenceMcCoubrey and White have stated, “… the matter of divine origin is fundamental to Islamic jurisprudence.”19 Thus, the authority of an Islamic Government to make laws of governance “can only be legitimately be found upon the holy law.”20 This means that any “laws” enacted by an Islamic Government which conflict with Islamic law are considered to be “irreligious” and devoid of legitimacy.21 Nonetheless, 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.22 On this issue, McCoubrey and White opine that: “(t)he moral criteria which are an essential part of Islamic Jurisprudence are not used as means of evaluation of positive legal norms, because from s strict point of view ‘legislation’ has no authority independent of the shariah in the first place.”23

A law, which contravenes Islamic law, is not law because it has no legitimate moral authority.

Relationship of universal, morality and differing religions“The question posed here is a common or universal morality which pre-exists all religions? In essence, this mode is inherent in natural law theory which posits the view of a universal moral order governing all mankind. 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

17 Op cit, Eversley, p 2318 Op cit, Eversley, p 2719 Textbook on Jurisprudence (2nd ed, 1996) p 10520 Ibid21 Ibid, p 10722 Ibid23 Op cit, Eversely, pp 29 - 30



universal norms or moral values. For instance, all legal systems, irrespective of religious persuasions, embrace some notion of respect for human life. More over, 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.”24

Free will in relation to law, 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. That God gave us free will or the will to be free seems to me to be a fundamental natural law principle. It finds its best expression in the highest ideals in democracy; and even in totalitarian systems this free will, though suppressed for a time, eventually bursts forth as people exercise their innate or inalienable right to freely choose how they live and are governed. This principle of free will is therefore both universal and rational. It is universal because it is inherently recognised and accepted by all men everywhere. I know of no man who truly desires not to have the right to be free. It is rational because no truly rational human being desires not to be free of oppression or even benevolent governance. We loathe the former and suffer the latter as a necessary evil.”25

Conclusion“It is clear from the foregoing discussion that, certainly in so far as the natural lawyer is concerned, law is not just a bloodless category, but is rather intimately connected to issues of religion, morality and other non-legal phenomena.”26

2. Concepts of the phrase ‘sources of law’:

(i) focus on the legal sources of law, that is, the Constitution, legislation – primary and subsidiary – and interpretation thereon by the Courts;

Introduction to Sources of Law

Source of law means the origin or basis of law. In the Commonwealth Caribbean, the law and legal systems originate from the United Kingdom (UK) and its common law and legal heritage. The basis of law in the English Caribbean is the English common law. However, “the origin of law and legal systems in the Commonwealth Caribbean is nor only that which emanated from the UK, but also includes law and legal systems actually created within the region.”27

In any particular legal system, there are several types of sources. These include:

(a) legal sources;

24 Ibid, p 3425 Op cit, Eversley, p 3626 Ibid, p 3827 Op cit, Antoine, p 73



(b) literary sources; and

(c) historical sources.

Of all three, legal sources are studied more closely, because they shape and inform the particular legal system more than other sources of law.

Literary sources of lawThe term ‘literary sources of law’ describes the location of the law. Examples of this source of law are:

i. books;ii. legal treaties;iii. law reports; oriv. legislation.

Literary sources of law tell us what the law is. They do not confer legitimacy on rules of conduct or social arrangements.

Historical sources of law“’Historical sources of law’ refers to the causative factors behind a rule of law, its historical origin and development”.28 For example the law of the Commonwealth Caribbean is derived directly from our colonial past. The source of our law is the process under colonisation that led to English Statute, the common law and equity being transplanted to the Caribbean under the doctrine of the reception of law. In England, the source of that country’s law is its’ customs.

It may be argued, “...that the historical source of law is particularly important in the Commonwealth Caribbean context, for our legal sources are intimately linked with the historical experience of colonisation and plantation societies.”29

There is a very strong direct interrelationship between the Commonwealth Caribbean legal sources and our historical sources. The attitude of the judiciary and legislature, the character and operation of legal institutions all still reflect the colonial experience. For example, colonial Acts still remain on the statute books – take for instance the vagrancy law.

Legal sources*Legal sources of law form the basis of the law’s validity. In other words legal sources give law its authority. “The identification of a legal source occurs after the process by which rules of conduct acquire the character of law, becoming objectively definite, uniform and compulsory.”30

28 Op cit, Antoine, p 7329 Ibid30* Students should ensure that they come to grips with this topic.? Op cit, Antoine, p 74



The following are legal sources of law in the Commonwealth Caribbean:

(a) the constitution;

(b) legislation;

(c) the common law and judicial precedent;

(d) custom;

(e) international law and the laws of regional treaties; and

(f) equity.

In the Commonwealth Caribbean international law was not traditionally a source of law. But it is becoming more important as a source which gives laws in the region’s jurisdictions validity and authority. This is particularly relevant to labour law and the law of human rights.

The Written Constitution as a Legal Source

The importance of the constitutionThe written constitution is thought to be the most important legal source in the Commonwealth Caribbean. There are two reasons for this.

1. The constitution represents an indigenous source of law. It symbolises the region’s break from colonialism, for the constitutions of the Caribbean were written when we were no longer colonies. It is therefore a manifestation of the political will of our people.

2. The constitution is also a very important legal source because it adheres to the theory of constitutional supremacy in the region. Before the theory of constitutional supremacy, the Commonwealth Caribbean observed the doctrine of Parliamentary sovereignty. This is also a doctrine characteristic of the UK. “While in form the constitution is an example of legislation, another legal source, it must be distinguished from ordinary legislation because of its’ important philosophical orientation and authority.

The constitution can be defined as a body of law containing the rules which determine the direction of the State, including the manner in which the State is organised and the body of fundamental principles according to which the State is governed”. 31 The constitution legitimises law. It is the base from which the rule of law originates and derives its authority or validity. All norms of society stem from the constitution. The constitution may be viewed as the parent law, for all other

31 Op cit, Antoine, p 75



laws are measured against it – it is the supreme law of the land. In Collymore v. AG32 it was said:33

No one, not even Parliament can disobey the Constitution with impunity.

Therefore the constitution is also a source of power, because it tells us (citizens) what our rights are, it also molds the shape of both the legal system and the political system. For example the principle of democracy can be found in the constitutions of democratic countries.

“The constitution lays down mandatory procedures for government, is the foundation for judicial review, states basic human rights and avenues for redress of violations of such rights and promulgates new remedies.”34 The following is a list of other functions of the constitution in the Commonwealth Caribbean:

1. State institutions – their creation and establishment as well as the distribution of the function of the State;

2. Grants authority the make laws;

3. Defines State territory; and

4. Gives the State legitimacy through the existence of an independent body of laws, which regulate the State.

But the most popular and important function of the constitution is its’ role in defining and protecting fundamental human rights.

The constitution also acts as a yardstick to measure the validity and authority of laws in general. It also supervises the use of power or authority in the State.

It is worth noting that a constitution can be unwritten as is the case in England. But this state of affairs is not without problems. This aside, it should be noted that Britain’s constitution is different, because in Britain, Parliament is supreme. It is does not conform to the ideal of constitutional supremacy as Commonwealth Caribbean countries do. For instance the preamble of the Constitution of Barbados states;

The Constitution is the supreme law of Barbados and, subject to the provisions of this constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency be void.

The sentiment is the same in the Jamaican Constitution, which states:

32 [1967] 12 WIR 533 Ibid, p 634 Op cit, Antoine, p 76



Subject to the provisions of sections 49 and 50 of the Constitution, if nay other law is in consistent with the Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.35

Form and structure of the constitution“The typical constitution in the region contains the following sections:

(a) A preamble (except Jamaica’s);

(b) chapters on citizenship;

(c) a section on fundamental rights and freedoms, called a Bill of Rights;

(d) chapters defining the powers of the Head of State and Parliament;

(e) chapters defining the powers and establishment of the executive and judicature;

(f) chapters establishing and defining the role and functions of the Public Service and Judicial Commissions;

(g) chapters on finance;

(h) in addition, there is a statutory formula giving Parliament power ‘to make laws for peace, order and good government’.”36

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. This is evident in the Bill of Rights of the region’s institutions. They reflect international concerns for fundamental human rights. 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.

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. One reason for this is the existence of the phenomenon of ‘saving law clauses’ in some of the constitutions such as Jamaica’s. These clauses preserve existing law or pre-independence common law. But doing this jeopardises the human rights provisions of the constitution.

For example in Nasralla v. DPP37, “the Privy Council declared that the fundamental rights which were enshrined in the new Jamaican Constitution were 35 Second Schedule Chapter 1 - Preliminary s.2(2)36 Op cit, Antoine, p 7737 [1967] 2 AC 238, PC



‘already secured to the people of Jamaica’.38 The court found that the rights and freedoms found in the Constitution were subject to ‘existing law’ or saved common law. This meant that the constitutional rights protected were only those, which existed before the advent of the written Constitution.

This pitted common law against the written constitutional guarantees of fundamental rights. The courts have often written judgments favouring common law and restricting the constitution. Take for instance the case of Robinson v. R39. The opinion from Jamaica emanated from the United Nations Human Rights Committee. The case illustrated the conflict between existing law and our Bill of Rights. The plaintiff lost his case all the way up to the Privy Council. “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. The United Nations Human Rights Committee, in rejecting a restrictive view of the Constitution, found that this was a violation of his rights to a fair hearing, although the common law position is that there is no right to legal counsel. Although the case did not specifically refer to a saving law clause, the underlying issue, that is the creation of new constitutional rights, not hitherto contained under the common law, was addressed.”40

There were similar arguments in Collymore v. AG41. Wooding CJ did state that the constitution was supreme law, but he still found that the constitutional provisions protecting trade union rights42 did not include the right to strike. This was justified on the grounds that at common law, there was no right to strike.

Consequently Commonwealth Caribbean constitutions have been interpreted as codifying existing common law. It is not viewed as creating new legal rights. The constitutions have been restricted in other ways.

For instance the introductory clauses of constitutions have given rise to litigation. Introductory clauses declare rights such as freedom from discrimination on the grounds of sex. The problem arises because the constitution then goes on to guarantee redress for violations under other sections. It has been argued that only those rights, which are specifically mentioned, should be protected. Therefore if the right is only mentioned in the introductory clause, it may be interpreted as non-justiciable or non-enforceable. For instance “in Girard and the St. Lucia Teachers Union v. AG43, the court found that no redress was available for a lack of equality on the ground of sex as it was not mentioned, except in the introductory clause.”44

38 p 247, per Lord Devlin39 United Nations Human Rights Committee Communications No. 223/1987, decided 198940 Op cit, Antoine, p 7841 Ibid, p 1242 The rights to form and join a trade union and freedom of assembly.43 Unreported Judgment N o 371 of 1985, decided 17 December 1986, St. Lucia44 Op cit, Antoine, p 79



But it seems as though Caribbean courts are moving away from this restrictive attitude to the potential of the constitution, in order to create and protect new rights. Take for example the case of Maharaj v. AG of Trinidad and Tobago45. In this case “a new remedy in damages for violations of human rights was held to have been created by the constitution”.46 Again in Thornhill v. AG47, the constitutional right to retain council was successfully promulgated. 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.48

“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. The courts should thus give life to the meaning of the constitution by interpreting it in a broad and purposive manner. The underlying presumption of such instruments is that the State, through its legislature, intends to secure the broadest spectrum of rights to its citizens.”49

The interpretation of the Thornhill case was very purposive. In Ministry of Home Affairs v. Fisher50 the need for purpose and generous interpretation was supported. It is one of the reasons therefore that Pratt and Morgan51 is so famous. The case is an illustration of the generous interpretation of a constitution. “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”.52

Constitutions have an evolutionary and a norm-building character. This is evident in the case of Hobbs et al v. R53. “Here, the Court of Appeal spoke of the ‘evolving standards of decency’ and the ‘new sensitivities which emerge as civilization advances’ which should be reflected in the interpretation of written constitutions. At the base of the argument is the fact that the constitution as a legal source is not static, but must constantly evolve so as to measure up to appropriate standards of human rights and other societal values. It is, as such, a dynamic and flexible legal source.”54

45 [1978] 2 All ER 67046 Op cit, Antoine, p 8047 [1981] AC 61, PC48 [1981] AC 61,49 Op cit, Antoine, p 8050 [1980] AC 31951 [1993] 43 WIR 34052 Op cit, Antoine, p 8053 [1994] CLB 4554 Op cit, Antoine, p 81



This case is revolutionary, because the Privy Council overruled a previous decision55 and a series of related decisions, and affirmed the dynamism of the written constitution as a source of law.

“There has, therefore, been a steady progression toward a development of a more purposive construction of Commonwealth Caribbean constitutions in relation to the Bill of Rights. 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. This interpretative technique is in line with those from international human rights conventions.

Commonwealth Caribbean courts seem poised to make the constitutional protection of human rights even more elastic, even in contentious areas, such as capital punishment. In Fisher v. AG of the Bahamas56, Lord Steyn noted that the death row litigation was ‘in transition’, and that just as the principle on undue delay had evolved to find such delays unconstitutional, it might further expand to include pre-trial delay.”57

Separation of powersThe principle of the separation of powers is embodied in the constitution. The separation of powers is important to the administration of justice in the legal system. It secures the independence of judges and provides that they are impartial and separate from political interference from the political arm of the government, so as to administer justice impartially.

Only the judiciary and the courts can exercise the judicial function. The cases of Farrell v. AG58 and Hinds v. R59, confirm this. In Hinds it was held that an attempt to establish a Gun Court, without it being properly constituted as a court of law, was unconstitutional. It was unconstitutional because only the judiciary and the courts have the right to exercise the judicial function.

In Hinds the Jamaican Parliament had wanted to establish a Gun Court. They wanted to give resident magistrates powers of jurisdiction, which the constitution reserves for Supreme Court Judges. The power of sentence was to be given to a review board instead of a court.

The Court of Appeal decision was overturned by the Privy Council who held, that the creation of a Gun Court was a violation of the separation of powers doctrine enshrined in the constitution. The Privy Council also pointed out that Commonwealth Caribbean constitutions:

55 Riley v. AG [1983] AC 719, PC56 (Unreported PC Appeal No 53 of 1997, decided 12 December 1997, the Bahamas)57 Op cit, Antoine, p 8158 (1979) 27 WIR 37759 [1976] 1 All ER 353; [1977] AC 195



… embody what is in substance an agreement reached between representatives of the various shades of political opinion in the State, 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.60

The Privy Council also found that new constitutions are evolutionary, not revolutionary. In other words they are grounded in basic concepts of the common law, separation of powers and the independence of judiciary, etc

Constitutional provisions secure security of tenure for judges. Independence of the judiciary is further ensured because the Judicial Commission, which was established for that reason, handles appointment and removal of judges.

“Bills of Rights in the Commonwealth Caribbean constitution thus ‘impose a fetter on the exercise by the legislature, executive and judiciary of the plentitude of their respective powers’. This is the ‘Westminster model’ of government.”61

Entrenchment of constitutional provisionsThe practical entrenchment is that certain constitutional provisions cannot be altered except by referendum or by a special majority of Parliament. All the constitutions of the Commonwealth Caribbean contain provisions for entrenchment.

This shows that the constitution is in a different and more precious category than that of ordinary legislation. Entrenchment operates to prevent Parliament from interfering with fundamental constitutional rights. The case of Smith et al v. Bahamas Hotel Union62 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, adding that entrenchment protected provisions, which were important safeguards, 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."

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. It therefore be said to be the basis of the rule of law. The testing and measuring of other laws and legal sources is carried out by judicial review.

60 [1977] AC 195, p 21261 Op cit, Antoine, p 8262 Suit No 105 of 1985, High Court, the Bahamas



Judicial review determines the validity of ordinary legislation. Legislation is measured against constitutional norms. If the legislation offends the norms it will be declared unconstitutional or ultra vires.

If legislation conforms to the constitution it is said to be intra vires. If legislation is ultra vires it will be declared null and void and will be struck from the books. Thus as Antoine asserts, “the constitution presents a formidable challenge to legislation.”63

For example in Collymore, 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. However they were unsuccessful.

The validation of other legal sources“The constitution also validates other legal sources in a sense other than the ultra vires concept discussed above. Since it gives Parliament and the legislature the authority to make law, legislation ultimately owes its legitimacy to the constitution. Similarly, the power given to the State to sign international treaties is found in the constitution, hence the legal source of international law can be said to be validated by 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, 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.”64

Economic, social and cultural rightsThe extent to which rights are categorised as economic, social or cultural rights (ECONSOC) are justiciable or enforceable is an area of controversy in the area of constitutional law.

These rights maybe enshrined in a constitution or international human rights instrument, for instance the right to form a trade union. These rights relate to the collective and this makes them unique, because they are not laws that affect the individual only. ECONSOC rights have an economic, social and cultural impact, examples of similar rights is the right to education and to self-determination.

The justiciability of these rights have been inconsistently applied in the Caribbean. In AG v. Mohammed Ali65 it was held that rights such as the trade unions right to consultation could be enforced. But generally these rights are difficult to enforce in the Caribbean. This is particularly the case in labour law. The reason for this is that labour law tends to be formulated in the collective, for

63 Op cit, Antoine, p 8364 Op cit, Antoine, p 8465 [1989] LRC (Const) 474



example the right to pay, the right to collective bargaining etc. In Jamaica, the right to collective bargaining was denied.66

Legislation as a Source of Law

The importance of legislationThis source of law is important in the Commonwealth Caribbean. It is becoming even more important because law is being codified more and more in the common law world – including the Caribbean.

Although the constitution is considered as a separate source of law it is strictly speaking part of the legislative process in the Commonwealth Caribbean. But it is so significant it is discussed separately. Legislation is a legal source that has its roots in the past. It is ancient; it is older than Western civilization67.

The nature and role of legislationLegislation is defined as “… the body of legal rules, which emanates from the deliberate law making function of the legitimate authority of the state.”68 Legislation is therefore deliberately made. This is the reason it is different from custom. Custom simply grows or develops through time, it has no draftsman. Also legislation is written, custom subsists in conduct.

Parliament has the authority to draft legislation. This authority is conferred by the constitution. Parliament can also delegate this responsibility to other functionaries and authorities. The doctrine of separation of powers also authorises governments to make legislation.

Thus the lawmaking pattern seems to be the following. Equity and common law produces legal principles. In turn, those legal principles are embodied in detail in statutes. Therefore as far as codification is concerned common law has contributed greatly to its development. It has also contributed to the definition of the jurisdiction of the courts.

The doctrine of precedents limits common law and equity. This is the reason legislation differs from them. Legislation is creative. Common law and equity have no choice but to build on existing legal principles and by manipulating case law. Legislation binds itself to radical and new principles of law; it does not have to refer to pre-existing principles. Also unlike common law and equity it can be repealed outright. Legislation is therefore the most efficient and the best tool for law reform. “For this reason it may be, more convenient for Commonwealth Caribbean jurisdictions to turn to legislation rather than the common law and precedent to develop a more Caribbean law.”69

66 Banton v. Alcoa Mineral of Jamaica (1971) 17 WIR 27567 Antoine cites the Code of Manu which predates the Roman and Greek civilizations. The Code of Manu governs the social and religious laws of Hinduism. 68 Op cit, Antoine, p 16869 Op cit, Antoine, p 169



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. 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.”70

Legislation is its own legal source. This is one other way it is different from other sources. For example common law and equity depend on the legal source of precedents, but legislation looks inward to itself – it does not need to refer to other legal sources. Legislation need only be interpreted under the rules of statutory interpretation.

However in practice legislation sometimes feeds on case law. Because it is not always easy to determine what a statute means. In instances case law and precedent are used to interpret and determine legislation.

Functions of legislationThe function of legislation is “to carry out law reform, and create, alter or revoke law in order to fulfill the intention of the legislative body and ultimately the people”71. Legislation also fills the gaps of other sources of law. There are eight other functions.

1. Revision This refers to the revision of the common law. 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. Therefore revision overrides the doctrine of precedent, it creates change. Which is in keeping with what the law should be. Law should not stagnant; it should be a tool for social progress changing to reflect social needs. But judges do not have the power to reform even when they are supported by public opinion. They cannot create law they can only illuminate it.

2. Consolidation of enactments In certain areas of jurisprudence law has developed piecemeal, legislation is used to clarify and simplify the status of the law. The substance of the law is not altered, only the form. There are three methods of consolidation. There are thee methods of consolidation:

(i) re-enactment (or pure consolidation);

(ii) by making amendments; and

(iii) by making minor improvements and correction.

70 Ibid71 Op cit, Antoine, p 169



3. Codification When case law is made into statute it is called codification. It is similar to consolidation except consolidation deals with statutes. But like consolidation it simplifies and clarifies the law. When laws are consolidated and codified, it is called a code. Currently draftsmen are trying to codify labour laws of the Commonwealth Caribbean. Antoine is of the opinion that this type of law can be viewed as a more elevated type of legislation72.

4. Collection of revenue or monetary control The sole purpose of some legislation is concerned with fiscal matters such as revenue collection. In Jamaica an example would be the General Consumption Tax Act (1991).

5. Implementation of treaties – incorporation When a country becomes a signatory to a treaty, the laws of the country are revised in order to conform with the treaty, because as a signatory the country has undertaken to do so. The process of making treaty law enforceable under local law is called ‘incorporation’. This can be done by passing legislation that mirrors the treaty or parts of it. So here the function of legislation is to make international law apart of domestic law. If a country incorporates treaties into domestic law because the are a signatory, that country has to legislate to enforce the decisions of the international courts. 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.

6. Social legislation This is legislation which is concerned with the day to day running of the country. Legislation like this is usually delegated by Parliament. They also gibe them power to make regulations. An example is immigration regulations.

7. Public policy Parliament can legislate on State policy that is the public interest. 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.

8. Response to pressure groups Sometimes the impetus behind a change in law is generated by a pressure group. Change is more efficiently effected by legislation in response to these groups. For example human rights groups.

Types of legislationThere three main types of legislation:

1. Acts of Parliament73 (or statute);

2. delegated legislation; and

72 Op cit, Antoine, p 17073 Before independence these were called Ordinances



3. autonomic legislation.

There are also special forms of legislation known as Orders in Council.

Orders in Council from the prerogative“Orders in Council are made under the prerogative with the advice of the Privy Council.”74 The prerogative is exercised by the Crown or the Head of State. In the Commonwealth Caribbean the Head of State is the Queen75, the Governor General is her representative. This instrument is hardly used. It is mainly used in relation to the armed forces, the civil service and in states of emergency. Consequently they are not a viable option to Acts of Parliament. Orders in Council are not as scrutinised as other types of legislation.

Orders in Council are made under the prerogative power, but they can also be made under the delegated law function. These two types must be distinguished. Orders made under the delegated function are similar to subsidiary legislation, but they are to be considered as a more dignified form.

Acts of ParliamentActs of Parliament are created by Parliament. They are created by its’ ‘legislative arm’ according to the doctrine of the separation of powers. There are two kinds of parliamentary Acts.

1. Private Acts - this kind of Act only affects the proposer or the sponsor of the Act. The proposer or sponsor may be a company, corporation or private organisation.

2. Public Acts - these Acts affect the entire nation. Representatives in

Parliament on behalf of the people propose them.

Legislation, which is passed in conformity with international treaties or agreements, is also public legislation.

Statutes or Acts of Parliament consist of the:

1. ‘long title’ – this is the Act’s official name. The content and aims of the legislation will be apparent from the aim.

2. ‘short title’

3. date of assent – does not necessarily have to be the date when the statue comes into force. It is the date when the Head of State approved it. In our case, that would be the Governor General.

74 Op cit, Antoine, p 17275 Except in Guyana and Trinidad and Tobago, which replaced the Queen as Head of State. They now have Presidents and are Republics



4. words of enactment – these will simply be ‘be it enacted …’.

The Upper and Lower Houses must discuss proposed public legislation. That is the Senate and the Cabinet must have a Parliamentary debate. Then there will be a first, second and third reading of the Bill.

First reading – announces the title of the Bill;

Second reading – the Bill is debated; and

Third reading – the Bill is passed.

Bills are usually introduced in the Upper House, government usually introduces them, but any Member of Parliament can introduce one.

Delegated or subsidiary legislationDelegated or subsidiary legislation is legislation created by subordinate or statutory bodies. These bodies have the power to do so because they have been given this power by Parliament. In other words Parliament has delegated power to them. They are given wide discretion to formulate the details of legislation. But only Parliament has the authority to create the substance of legislation.

Ultimately, it is Parliament’s responsibility to create law. Bodies that make subsidiary legislation (statutory bodies) do not have complete authority. Complete authority means, the authority to create legal policy. Consequently subsidiary legislation is subject to more scrutiny by Parliament and the courts. So Acts of Parliament (or statutes) are two different creatures. But they are both are both legal sources, both have force of law and legal authority. Bylaws and regulations are the main types of delegated legislation.

Regulations or ordersGovernment departments create regulations; they are also called rules or orders. It is the most popular form of delegated legislation. They are often statutory instruments which are quoted by year and number as well as a title, for instance SI 1998/34B The Weight & Measurement (Conversion of Unit Measurement) Order.

BylawsBylaws are not statutory instruments unless the enabling parent Act declares them to be. They therefore only bind those who come within the restricted scope. The scope of bylaws is restricted because they pertain to the local jurisdictions of the body that made them. Bylaws are made by governmental authorities subordinate to Parliament. Or example local authorities or independent statutory



corporations that regulate administer or manage certain districts, undertakings, property etc.

Functions of delegated legislationLegislation is delegated for administrative efficiency.

1. Speed and efficiency – Parliamentary procedure for passing law is lengthy. Plus they have to make time to debate it. In contrast delegated legislation in contrast is speedy.

2. Technicality – the subject may need expert knowledge.

3. Special knowledge – creating the legislation may also need specific or local knowledge from experts or from people of a particular location.

4. Flexibility – delegated legislation can be revoked or amended easily.

5. Bulk – it is better to put the details of the law in delegated legislation. Because of Acts of Parliament are primarily for public consumption. The details of the Acts which are embodied in delegated legislation are usually only used by subsidiary bodies or bureaucrats.

6. Future developments – it is easier to add details to delegated legislation in the future than it is with Parliamentary Acts. Consequently the law will be better able to keep up with developments.

Autonomic legislationThis is a special type of delegated legislation. Autonomous legislative bodies such as churches, Chambers of Commerce and The Bar Council, make autonomic legislation. These types of delegated legislation in limited cases apply to the public but it is meant more often for its own members.

Autonomic legislation is however subject to judicial control under administrative law, for example Gatherer v. Gomez (1992) 41 WIR 68. The Anglican Church Act established Diocesan Synod and gives it power to make regulations etc. for the good government of the Church (s. 24). Under the Act the Synod retired Reverend Gatherer when he turned sixty-five. The Privy Council struck down this Regulation because it had not been published in the Gazette. It is required by s. 15 of the Interpretation Act (1968) that an Act or Regulation be published (in the Gazette) before it comes into operation.Controlling Acts of ParliamentIn the Commonwealth Caribbean, Acts of Parliament must be measured against the constitution whish is supreme. Therefore under the principle of judicial review, Acts of Parliament are subject to judicial scrutiny. 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.



Parliamentary debates are also an important control as statutes are also an important control as statutes can either be amended or rejected. By participating in public debate ordinary citizens can participate in the process.

Parliamentary control of delegated legislationThe ultimate responsibility for the creation of legislation lies with Parliament. Therefore they must supervise and scrutinise delegated legislation. This responsibility is critical, Parliament is an elected representative government, they are supposed to represent the people and must void violating this duty. They therefore monitor delegated legislation in four ways.

1. Laying - the document is presented to Parliament, approval is implied.

2. Laying subject to affirmative resolution – after laying an affirmative vote must be obtained so that the legislation is passed.

3. Laying subject to negative resolution - legislation is laid before Parliament for a specified time, if there are no objections it is passed. It must be laid in a specified period or it will become void.

4. Publication - before legislation becomes law it must be published, it will usually be published in the Government Gazette.

Parliamentary control may also be subject to judicial control.

Judicial control of delegated legislationThe main concern of the courts in relation to delegated legislation is that delegated power is used appropriately. The court has to ensure that the body, to which power is delegated, does not act with more power than it has.

Administrative bodies acquire decision-making power when Parliament delegates legislation creation to them. This decision-making power is discretionary. If the body acts beyond this discretionary power, the courts will view the body’s actions so that a remedy can be offered to members of the public who have been affected. When an administrative body acts beyond its power, this wrongdoing is described as ultra vires. When the courts review the body’s actions that process is called judicial review. The courts are able to carry out judicial review because it has an inherent jurisdiction to supervise subordinate decision-making bodies. The fundamental role of the court is to uphold rule of law and justice, scrutinising the use of delegated Parliamentary power is therefore in keeping with this function.

The administrative law principle of judicial review is embodied in the constitution of the Commonwealth Caribbean. Therefore it is important to us. Barbados has



actually codified the principles of judicial review in the Administrative Justice Act (1980).

The legislative process of delegated legislation can be controlled at two stages. The:

(i) pre-emergent stage; and

(ii) post-emergent stage.

At the pre-emergent stage the courts look at procedure, which should be carried out before the legislation comes into effect. For example pre-conditions such as laying. 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. The court will weigh whether the power conferred by Parliament has been abused or not.

The use of the court to control delegated legislation by judicial review is apart of an area of law known an administrative law. The judicial process is divided into procedural ultra vires and substantive ultra vires.

Procedural ultra viresWhether or not legislation is procedurally ultra vires will be considered at the pre-emergent control stage. At this stage the court examines the process by which the legislation comes into being. If there are preliminary procedural requirements, which were not followed, the court may find that the legislation was not legitimately effected.

Procedural requirements can be either mandatory or directory. Where mandatory procedures have not been followed, the legislation will be void. But if directory procedures are not followed, the regulations will not be void.

What constitutes mandatory and directory procedures is uncertain. Courts have not been consistent in determining which is which. But is certain that procedures required by the constitution are mandatory procedures.

For example in Kelshall v. Pett76 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. The minister had the authority to declare a state of emergency. However before he did this, the constitution required that he put a review tribunal in place. But the minister did not fulfill this condition precedent before he exercised the power to make the regulations. As a result, it was held to be ultra vires and consequently void77.

76 [1971] 19 WIR 12777 This means that the regulation had no effect.



The courts will look at parent Acts to determine what the preconditions are. Some preconditions are the requirement for consultation or laying. Take for instance, the case of Biggs v. COP78. This case involved the infamous train robber. Under the Extradition Act the minister could make regulations. The condition precedent was that the regulations should lay in Parliament for a specific time. The regulations were held to be invalid because the condition precedent was not fulfilled and Biggs went free. Another example is AG v. Barker79. In this instance the precondition stipulated that the regulations be effected by the affirmative resolution procedure. The regulation was the 1982 Education Act Regulations, which set the conditions necessary for entry into secondary school. It was invalidated because the mandatory regulation was not fulfilled.

A case where a precondition was not fulfilled but the legislation was still found to be valid is Springer v. Doorly80. The precondition was laying. Three months after the Regulations had been read, neither House of Parliament had approved it as is required. The court held that laying was only a directory condition precedent, so the regulations could stand.

The requirement of publication is usually strict. Regulations, which require this precondition (required by the parent Act, only become legal when they are published81.

Consultation is usually mandatory. Consultation means that the minister or other delegated body consult with other bodies. For example a minister was required to consult with a local authority in Port Louis Corporation v. AG82. The reason was the government wanted to change the boundaries of Port Louis. But the local authority needed more time before it expressed its’ views. They asked for an extension and the minister refused. The regulations were found ultra vires.

Substantive ultra viresSubstantive ultra vires is concerned with the substance of subsidiary legislation. 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. Delegated legislation will not be valid it goes beyond the scope of the parent Act (or enabling statute). Since it is the parent Act that gives the authority to make subsidiary legislation.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. “Subsidiary legislation must be confined to the limits of the parent Act.”83 If for example government gave a local authority the power to make regulations for playgrounds, it would be ultra vires the delegated

78 [1982] 6 WILJ79 [1984] 38 WIR 4880 [1950] LRBG 1081 Kellshall v. Pett [1971] 19 WIR 127; Gatherer v. Gomez [1992] 41 WIR 6882 [1965] AC 111183 Op cit, Antoine, p 180



power if that local authority also made provisions for the regulation of parks, it would be ultra vires or outside of the jurisdiction granted.

For instance in AG v. Barker and Another84 , 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. The issue was whether the minister could intervene in the admissions process of secondary schools. It was held that the Education Act (1981) did not give a minister the power to determine the qualifying mark of a pupil in the secondary schools entrance exam. 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. Kingston Board85 . Here the board had the authority ton regulate the period when elections to the board should take place. The board did not have jurisdiction to determine disputed elections. But the Board made a bylaw to this effect. The bylaw was found to be ultra vires and therefore invalid, it was beyond the jurisdiction of the parent Act.

Courts will look at the use of delegated power as well. If a delegated authority abuses his discretionary power by deciding matters arbitrarily or unreasonably, or takes unreasonable considerations into account, he may be found to be ultra vires the parent Act, the delegated legislation or the fundamental precepts of law.

For example in Mohammed v. Morraine and Another86, a School Board refused to allow a student to wear Muslim dress to classes. Amongst other things the School Board considered school tradition. The board also did not consider the psychological effect of the refusal and had applied the Regulations87 inflexibly. Consequently the School Board was found to have acted ultra vires the Regulations.

Unreasonableness, injustice and unconstitutionalityApart from not acting ultra vires its’ powers and not making subsidiary legislation which is beyond the scope of parent Acts, administrative bodies must also not act ultra vires to constitutional norms or other legal norms.

If subsidiary legislation goes against fundamental norms it will be declared ultra vires. For example if the use of a discretion is clearly unjust it will be ruled ultra vires. Also delegated legislation, like Parliamentary Acts cannot violate principles of the constitution. So, delegated legislation must pass a threefold test:

“1. it must conform to the intention, purpose and jurisdiction of the parent Act;

84 [1984] 38 WIR 4885 [1969] 5 WIR 27286 [1995] 49 WIR 37187 Regulations under the Education Act of Trinidad and Tobago



2. in its creation, the appropriate procedural safeguards must be adhered to; and

3. it must not violate constituted norms or other legal norms such as public policy or justice.”88

Criticisms of delegated legislation

(i) Its’ undemocratic - subsidiary power is exercised by un-elected bodies;

(ii) Delegated authorities often sub delegate to others;

(iii) The volume of subsidiary legislation is significant. It is difficult to keep track of it.

(iv) The controls against abuse are not always efficient. The most important control is judicial review and this is not carried out unless a citizen challenges delegated legislation or exercise of power. This is especially significant in the Commonwealth Caribbean where we are not in the habit of suing the government or government-associated procedures.

(v) The outcome of judicial review is uncertain.

Customs and Conventions as Sources of Law

“The courts must declare customs and conventions as law and not mere social practice”.89

CustomsAntoine feels that legal systems of the Commonwealth Caribbean do not reflect out customs90. Our customs are imported to colonisation and slavery.

The common law rules of custom“Custom may be viewed as both an historical and legal source of law in the Commonwealth Caribbean since, in one sense, it is the principle source of all English law, as it formed the basis of the common law which has been transplanted to the region.”91

In England a distinction is made between common law and custom. Custom refers to local custom, which become law. But if common law exists then common law will take precedence. In the Commonwealth Caribbean, custom

88 Op cit, Antoine, p 18189 Op cit, Antoine, p 13390 Ibid91 op cit Antoine, p 134



forms a distinct body of law that applies to a locality. This is especially apparent in land law or property law.

Custom comprises two distinct elements. They are:

1. it must be an exception to common law; and

2. it must be confined to a particular locality, such as a parish, county or borough. This source of law is not relied upon often, not surprising considering the above.

Customary rules are not given judicial recognition until settled by a judicial decision. The party who pleads customary right must actually prove that it exists. That party must also prove that certain tests are satisfied. They are:

(i) antiquity;

(ii) continuance;

(iii) peaceable enjoyment;

(iv) mandatory;

(v) certainty or clarity;

(vi) consistency; and

(vii) reasonableness.

These tests do not apply neatly to the Commonwealth Caribbean, For example the year 1189 is fixed as to the time from which a custom is considered antiquated. We cannot use that date for historical reasons. 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. In St. Lucia is the Civil Code is silent on a point, it will allow parties to resort to custom.

ConventionConvention as a source of law in our legal system is a topic of much debate in the Commonwealth Caribbean. It is significant to certain procedures such as the exercise of sovereign power.

In the UK conventions are basically non-justiciable practices. The controversy for us is whether they are justiciable here in the Commonwealth Caribbean.



The short answer is yes. The reason is English conventions were transplanted to our legal systems as codified law enshrined in our constitutions. Therefore those conventions have constitutional authority. This means that they are no longer just conventions; they are hard law and are enforceable.

Antoine proposes however that there are some English conventions, which were not meant to be enforceable in our jurisdictions. For instance Parliamentary privilege which is meant to apply solely to the Houses of Parliament in England. In Jagan v. Gajraj92 the Guyanese courts agreed with this position. They held that the privileges, immunities and powers of the English Parliament were not automatically received by colonial legislatures. 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 law93. But today international law influences legal systems all over the world. For instance in the Commonwealth Caribbean it has influenced our constitutional and human rights law greatly.

“The impact of human rights decisions on law and legal systems is particularly significant in the Commonwealth Caribbean. This is so for two reasons. First, 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. This, coupled with the Privy Council’s newfound justification for expanding the human rights jurisprudence, has resulted in an osmosis beneficial to the development of international human rights standards in the region. Secondly, several Commonwealth Caribbean countries are signatories to the Optional Protocol on Human Rights, a significant factor …”94

International law is derived from three sources. They are:

(i) treaties or international agreements;

(ii) international customary law; and

(iii) general principles of law recognised by nations,

International courts also consider highly qualified publications as an auxiliary source of law. The interpretations of international agreements are also apart of the body of international legal norms and principles. These interpretations are

92 [1963] 5 WIR 33393 Op cit, Antoine, p 14994 Op cit, Antoine, pp 156 – 157



handed down by courts (regional or international), international committees or committees which have the authority due to power granted by particular international instruments.

International law becomes part of domestic legal systems when they are adopted through conventions and treaties, or by way of accepting practice, which may develop into binding international custom.

Such international declarations protocols, agreements or conventions influence all legal systems. “These declare certain legal principles believed to be desirable for all nations.”95 Some examples are the:

(i) UN Declaration on Human Rights;

(ii) UN Covenant on Civil and Political Right; and

(iii) Optional Protocol on Human Rights

The Optional Protocol is an optional provision of the UN International Covenant on Civil and Political Rights. It has had undoubted impact in Jamaica. It was instrumental in formulating the Pratt and Morgan principle. Its use was also notable in Robinson v. Jamaica96, in which it was decided that the right to counsel, when the accused is facing the death penalty is a fundamental human right.

In 1998 Jamaica withdrew from the United Nations Human Rights Committee (UNHRC). Jamaica did this so it could resume hanging people on death row and in order to hang them quickly.

Death row prisoners had had successful recourse to the UNHRC. Consequently the UNHRC was perceived to be obstructing popular justice in the country. The ruling in Pratt and Morgan caused panic in Commonwealth Caribbean government who are burdened with increased crime levels.

Regional lawRegional treaties and agreement also generate legal obligations and influences. As a source of law their effect is similar to international treaties, and instruments. The most significant regional instrument is the CARICOM Treaty. In addition there is the OECS, which is similar to CARICOM for the countries of the Eastern Caribbean states.

ConclusionInternational law can now be legitimately claimed as a source of law in the Caribbean, if only in the field of human rights.

95 Op cit, Antoine, p 14996 UNHRC Comm 128/1987



________________

Students are instructed to read Chapter Twelve of Rose-Marie Belle Antoine’s, Commonwealth Caribbean Law and Legal Systems.



(ii) common law and equity – origin and development in the Caribbean;

Introduction to Common Law

Another name for common law is case law. Common law or case law is an important source of law in the Commonwealth Caribbean. Common law is legal principles derived from cases. It is relevant where there are no applicable statutes. Common law or case law is a legal as well historical source. It is a historical source because the existence of the common law tradition in the Commonwealth Caribbean is directly linked to our colonial past. In other words we practice it because it was transplanted to the region under the English.

English common law can be viewed as a historical source because its’ development is linked to the historical development of that country. “This is because the common law is really the outgrowth of historical custom, 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’”.97

Common law develops on a case-by-case basis. It is this ad hoc legal growth that makes common law unique. The court builds on the previous judgment in each case. Originally this practice was oral, in other words it was a body of unwritten legal rules. These rules were formulated in a flexible and informal manner by the King’s courts. These courts were collectively known as the common law courts. The common law courts comprised of three branches, they were:

1. the Court of King’s Bench;

2. the Court of Exchequer; and

3. the Court of Common Pleas.

But as the common law developed it lost its flexibility and informality and became rigid and identifiable. Therefore, today it is not strictly true to say that the common law is an unwritten body of law. For, due to the system of case reporting it has been solidified.

Eventually the courts developed rigid administrative procedural rules. This also another reason the common law is unique. An example or procedural rules is the ‘writ’. The writ regulates the initiation of legal proceedings in court.

97 Op cit, Antoine, p 87



Equity as a Source of Law

“We saw earlier that the common law grew out of the customs and practices of the English, as promulgated in the ancient common law courts. Yet, when we speak of the common law as a legal tradition, we are not only referring to the body of law which developed in separate and different English courts. This body of law is known as ‘equity’, or equitable principles. In laypersons’ language, equity means fairness, justice, or what is morally just, but in a legal sense, it is a much more specific concept. Still, it embraces such notions, as it is a system which was inspired by ideas of justice. It is commonly said that the law of equity is based on rule of conscience. Today, however, 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, admirality and ecclesiastical courts.”98

Equity grew up alongside common law but it is a distinct and separate body of English law. Equity is apart of the common law tradition but it is NOT part of the common law. This means that the common law has a dual structure. It comprises:

1. common law rules; and

2. the rule of equity.

‘Common law’ can mean different thins. It can mean being apart of the common law tradition or it can mean legal principles, which come from case law or precedent. But it can also mean that which is not equity. In other words it is the law “developed by the ancient common law courts as distinct from that developed by the Courts of Chancery.”99

Equitable rules are laws, but a theoretical distinction is made between equitable rules, rights and remedies as well as legal rules, rights and remedies. Common law courts develop legal rights; the Court of Chancy develops equitable rights.

The historical justification for and development of equityAs the doctrine of stare decisis developed, the administration of common law became very inflexible. The common law courts focused more on procedural accuracy, rather than justice. The common law had been designed to be flexible and innovative, but it lost those characteristics. This happened because the doctrine of stare decisis encourages rigidity within the law.

Stare decisis also curbed creativity; 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. As a result common law

98 Op cit, Antoine, p 12199 Op cit, Antoine, p 122



in some instances had become irrelevant to society. Its’ rigidity created chaos and inefficiency. So where common law could not satisfy there was recourse to equity.

“Take writs and forms of action for example”.100 “Forms of action included a writ and particular rules of pleasing and proof, a specific form of judgment and a method of executing judgment. By the end of the 13th century the kinds of available writs and their forms of action had become inflexible. Under the common law, these systems of writs and forms of action were mandatory. No action could be 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). There were, for example, ‘writs of right’ commencing an action of land and writs of trespass’ for injury to person or property. Litigants had to try to fit their circumstances into the writ in order to bring their cases before the common law courts. If they could not, they could obtain no redress.”101

There was also a need for new remedies because of the development of society’s social and commercial life. Damages were the only available remedy. Damages is the payment of money as compensation for a wrong. This remedy was not always satisfactory, even today it is still not always a satisfactory remedy. Sometimes a plaintiff wants the defendant to return something, such as land, or to evict the defendant from land. As a result new equitable remedies were developed.

The Court of ChanceryOriginally the Court of Chancery was the ‘sessions of the Chancellor’. The Chancellor was the King’s Chief Minister, who was usually a member of the King’s clergy. In the 15th century the court became a separate and distinct court.

“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. Where the common law could not give a remedy or enforce a remedy, informal petitions were addressed to the Council, which ordered specific relief in the interest of justice. These petitions were then passed to the Lord Chancellor.”102

The Chancellor had wide discretion to decide cases justly and fairly. He acted on the conscience of the parties and issued writs of attendance and gave relief. Chancellors built up a body of principles called equitable principles. Equitable principles sought to correct common law’s deficiencies. During this age the King was thought to be God’s representative and therefore infallible. He was supposed to be the ‘fountain of justice’. Therefore the Court of Chancery existed so that he could exercise his power to undo injustice in the legal system.

100 Ibid101 Op cit, Antoine, pp 122 – 123 102 Op cit, Antoine, p 123



The nature and the content of equityEven if not strict legal right exists, equity may grant remedy. That is the nature of equity; it corrects the deficiencies of common law. 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. “For example, a mere agreement to create a formal lease is enough to create a legal obligation due to the maxim, ‘equity looks on that as done which ought to be done’.”103 Equity will also give effect to legal arrangements if the intention to create legal obligations exists.

In common law remedies are available ‘as of right’. The conduct of the plaintiff is not taken into consideration, as long as his legal rights have been infringed, he will have a definite right to a remedy. In equity, remedies are discretionary. In equity a remedy is only granted if the court decides that the plaintiff deserves it. So even there was a wrong, but the plaintiff behaved inappropriately he will not receive a remedy. If damages – a legal remedy – is sufficient the court may not award an equitable remedy. Therefore the chief differences between equity and common law is that a remedy in equity is discretionary.

This discretion is exercised according to fixed & settled rules; for example where hardship would result if a contract were enforced104. In Dudley v. Dudley105 it was said that equity does not destroy the law or create it, but assist it.

There are sayings that illustrate the nature of equity; they illustrate how the law of equity will be applied. A few are:

(i) ‘Equity does not suffer wrong to be without remedy’. So where not remedy is available under common law equity has the ability to create a new remedy.

(ii) ‘He who comes to equity must come with clean hands’. This means that a person who comes to equity must come with a clear conscience, and must have done no wrong in respect of the matter before the court, in order to get a remedy. This one of equity’s best-known maxims. The case that illustrates this principle involved the cult of Scientology. They were the plaintiffs and were trying to get an injunction to refrain a breach of confidence and copyright. But the court ruled that they did not deserve a remedy in equity because they had been protecting their secrets by deplorable means106.

(iii) ‘He who seeks equity must do equity’. So if someone is applying for equitable relief he must be prepared to act in an equitable manner himself.

103 Op cit, Antoine, p 124104 Shiloh Spinners Ltd. v. Harding [1973] AC 691105 (1705) Pre Ch 241, p 244; [1905] 24 ER 118106 Hubbard v. Vosper [1972] 2 QB 84



This maxim is different from ‘clean hands’ because it looks to the future not the past.

Equity features more prominently in property and contract law. For example the ‘trust’ is an equitable creation. “The trust is peculiar to common law systems. 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). The trust is also instrumental in succession law where property is involved, such as in the drafting of wills.”107 Examples of new rights created by equity are the:

(i) rights of a beneficiary under a will or a trust;

(ii) existence of an equitable interest; and

(iii) equity of redemption.

Equity has also created new remedies. They include:

(i) the injunction – this prevents foreseeable wrong from occurring;

(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.

The modern expression of equityThe rules of equity today are just as strict as common law. Originally the Court of Chancery was able to create new rights and remedies. It used to be said that equity varied with the length of the Chancellor’s foot.

Equity used to be concerned with correcting the inflexibilities of common law. But now greater emphasis is placed on exercising the discretion within well-defined circumstances. So equity is no longer viewed as being corrective of the common law.

The role of the legislature in creating equitable principles and offshore developmentsSometimes 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”108. So Parliament will extend equitable jurisdiction into areas that courts held none existed.




For example in the United Kingdom since the Judicature Acts 1873 – 75, injunctions have had wider use, in the areas of tort, labour law and administrative law. In turn, injunctions have also lead to the development of new rights such as the law of restrictive covenants in property law.

Offshore legislative developmentIn the offshore jurisdictions of the Commonwealth Caribbean there has been innovative development f equitable principles. The reason for the growth of law in the area is, those countries have created laws in order to address the needs of investors. Legislation has been used to change traditional trust law principles. This is significant because ‘the trust’ is a corner stone in this area of law. For example a very important principle of trust law is that trusts cannot be created in perpetuity. But offshore jurisdictions have redesigned this rule to extend the period of specified perpetuity or abolished the rule completely.

New developments by the courtsCourts have not been as adventurous sine the 19th century. But modern times have seen some in the law of equity. 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).

Equitable estopple is a remedy that stops a party from denying something, which he knowingly or unknowingly has allowed or encouraged another to assume, to that person’s detriment. Mareva injunctions and Anton Pillar orders are used for enforcement.

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. It is a form of mandatory injunction or order for discovery.

A Mareva injunction is an interlocutory injunction preventing the defendant from removing assets from the jurisdiction. It is informally known as a ‘freezing order’.

Both remedies derive their names from cases109.

The relationship between the common law and equityEquity is not a self-sufficient body of law. It was formulated to address the shortcomings of common law. There would still be a coherent system of law if equity were abolished.

“Originally the Chancery Court had an exclusive jurisdiction in equity where the common law had no remedy or relief. In addition, the court of equity had a concurrent jurisdiction where the common law recognised the right but offered no remedy. For example, where there was a threatened commission of a tort, it

109 Anton Pillar v. Manufacturing Processes Ltd [1976] Ch 55; Mareva Compania Naviera SA v. International Bulkearners SA [1975] 2 Lloyds Rep 509



could grant an injunction to refrain someone from committing a nuisance. 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.”110

Eventually common law and equity clashed. The Judicature Acts 1873 – 75 took care of this problem. The Act abolished the separate courts (common law courts and the Court of Chancery). 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. But they are still two separate bodies of law, so damages is still a common law remedy and equitable remedies are still discretionary – but one court is able to grant both remedies.

It is important to remember that when there is a conflict between equity and common law, equity will take precedence.

“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. There is therefore no need to go to a separate court if one wishes to obtain an equitable remedy. Still, equity continues to perform the same function complementing and supplementing the common law in accordance with moral notions of justice and fairness. It is the common law’s ‘safety valve’.”111

(iii) precedent.

The Doctrine of Judicial Precedent

The heart of the common law as a legal source is the doctrine of precedent or stare decisis. The literal translation of stare decisis is ‘let the decision stand’. This doctrine provides for the development of common law on a case-by-case basis. It gives the process impetus and scientific rationale.

The nature of the doctrine of judicial precedentThe doctrine of judicial precedent operates where no statute applies to a particular legal issue. When there is no statutory law the judge will consider case law. Specifically, the judge will consider cases decided previously on the particular issue. He will look at the principles contained in such cases; those principles are called judicial precedents. Binding principles are more important because they allow the preservation of case law principles.

Therefore judges will decide cases in conformity with existing rules. Because the rationale behind the doctrine of binding precedent is that judges do not create law. They use the existing rules to guide them in making decisions. Judges are therefore bound to apply the legal principles of binding precedent.




The case of London Tramcars Co. Ltd v. London County Council112, was one of the first to make a pronouncement on the doctrine of stare decisis. In that case, 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.”113

The opposite of binding precedents are ‘persuasive precedents’. Persuasive precedents are legal principles contained in judgments, which only offer guidance. These precedents are not binding even though the judge will refer to them. Obiter dicta may form the basis of persuasive precedents. Persuasive precedents may originate from lower courts in the hierarchy within a jurisdiction. It may also originate from other jurisdictions.

For example a decision from the Court of Appeal in Trinidad and Tobago is only persuasive authority to a court in Jamaica. Precedents from Commonwealth Caribbean jurisdictions and the UK are highly persuasive in the region. For example in Boodram v. Ag and Another114 the Court of Appeal in Trinidad and Tobago commented on the shared heritage that existed between it and Jamaica, amongst the similarities was a “common history and jurisprudence …”115

Because the similarities that exist between our constitutional instruments, precedents from the USA, Canada, India and the European Court of Human Rights are highly persuasive in constitutional matters. Also when cases involve socio-economic matters, precedents from other developing countries with a common law legal system are usually viewed as highly persuasive.

The jurisdiction from which a precedent emanates and the status of the court, which makes the decision and its date, will determine the degree of persuasiveness of a precedent. Sometimes, the reputation of the judge will influence a court.

The hierarchy of courtsThe doctrine of judicial precedent cannot work if there isn’t a system of hierarchy of courts. In the Commonwealth Caribbean the highest court is the Judicial Committee of the Privy Council. The decisions of that court therefore have the most authority.

After the Privy Council is the Courts of Appeal, then High Courts or Supreme Court of Record and intermediate courts such as the family court and resident

112 [1898] AC 375113 [1898] AC 375, p 379114 [1994] 47 WIR 459115 Ibid, p 477



magistrates’ courts of Jamaica. The last courts in the hierarchy are magistrates’ courts and judicial courts.

The rule is that each court is bound by the decision of a court above it. Sometimes a court is bound by decisions of a court of equivalent status.

Concepts Important to the Doctrine of Precedent

The following are essential to an understanding of the doctrine of judicial precedent.

1. The ratio decidendi

The only facet of a decision that is binding on a judge is the legal principle or rile of law contained in that decision. This legal principle or rule of law is known as the ration decidendi.

A case may contain several ratio decidendi, it is important to distinguish the ratio decidendi that is relevant to the subsequent case. “The ratio decidendi may be defined as the statements of the principles of law applicable to the particular legal problems disclosed by the facts. Essentially therefore, the ratio is the legal reason which the judge gives for the decision he arrives at in a particular case.”116

If the case is argued on more than one ground, it is difficult to isolate the ratio. The reason is the case may be decided on only one of the grounds argued. The deciding argument will be binding. But it is still possible to have more t5han one ratio. For example, more than one reasons given for the decision.

Take for instance the case of Read v. Lyons and Co. Ltd117 one of the ratio decidendi in that case was that the rule in Rylands v. Fletcher118 “…did not apply to the escape of dangerous substances from the defendant’s control. The second was that the rule did not apply unless the plaintiff had an interest in land affected by the escape.”119

It is important to distinguish the ratio from a finding of fact and from the judgment. The judgment is a combination of legal reasoning and the facts of the case.

The ratio must also be distinguished from the res judicata or the adjudicated matter. The adjudicated matter will bind the specific parties in the particular case. Subsequent parties are not so bound. In comparison the ratio binds all subsequent courts. Therefore the res judicata simply means that the matter has been determined once and for all. Even if a subsequent case before the courts

116 Op cit, Antoine, p 90117 [1947] AC 156118 (1866) LR1 Ex 265; on appeal (1868) LR 3 HL 330 (a previous case)119 Op cit, Antoine , p 90



appears to be factually identical, the judge or jury may not necessarily come to the same conclusions as was arrived at in the earlier case.

2. Obiter dicta

It is very, very important to distinguish statements of law, which are ‘by the way’, or obiter dicta. There are different categories of obiter dictum. For example, a statement of law that is related to facts, which were not material or in fact did not exist, will be obiter dicta.

If a statement does not form the basis of a decision it will be obiter. That will be the case even if the statement is based on relevant facts. For example legal principles, which are cited in dissenting judgments, or where the decision is different from the reasoning due to a particular fact. For example in Hedley Byrne and Co. Ltd v. Heller and Partners Ltd120, the chief legal principle was obiter because the only exception to that rule had occurred in that case. The legal principle was that the maker of a statement owes a duty of care to the listener. The exception was if the listener protected himself with a disclosure. The defendant had protected himself with a disclaimer so the principle could not be contained in the ratio decidendi.

If a judge makes other remarks these may also be obiter dicta. Remarks such as judicial pronouncements or comments on non-legal matters like morals or public policy. So if a judge compares the facts of the case to another situation, even if he says that the hypothesis is relevant, it is still obiter dicta.

Statements of law made per incuriamPer incuriam literally means through a ‘lack of care’. This occurs when relevant material, which could have affected the outcome of the case, if it had been considered, was not brought to the court’s attention. Such relevant material includes statutory provisions relevant legal principles or precedents.

A Court of Appeal is not bound to follow its’ own previous decision, if it was satisfied that a judgment was given per incuriam. This principle was developed in the leading case of Young v. Bristol Aeroplane Co Ltd121. However this does not always affect the doctrine of precedent.122

The per incuriam principle has affected only a few decisions. Decisions are only considered to be per incuriam because of forgetfulness, ignorance or inconsistency in statutory provisions or binding authority. This as a result, leads to inaccurate legal reasoning.123 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, the doctrine may be applied.120 [1964] AC 465121 [1944] KB 718122 Cassell v. Broome [1972] AC 1027123 Morelle v. Wakeling [1955] 2 QB 379



The importance of law reportingThe 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’. This mechanism is important to the preservation of the common law.

The lack of adequate law reporting in the Commonwealth Caribbean is a serious problem. It also deprives the region from contributing to the development of common law. We lose this opportunity because judges from all common law jurisdictions look to other jurisdictions for helpful precedents.

However if the law reporting system is too efficient, that can cause problems as well. Because then the wealth of material becomes overwhelming.

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. They will do this to change judgments, which are considered to be inaccurately decided. For instance the Supreme Court can overrule the decisions of inferior courts. In certain exceptional circumstances it will actually overrule its’ own decisions. Some ways of avoiding binding precedents are:

1. overruling;

2. prospective overruling;

3. per incuriam & obiter statements;

4. distinguishing precedent;

5. reversing a decision; and

6. first impression decisions.

OverrulingCourts are reluctant to overrule precedents, because overruling works retrospectively. It does not just affect the case that is overruled; it affects the rule of law. A decision may be overruled by statute or by a higher court. When this happens, the legal principle in the overruled case will be treated as though it never existed.Prospective overrulingThis does not occur in England or the Commonwealth Caribbean. It is an American practice that some common law jurists believe should be extended to



the Common Law Tradition.124 The US Supreme Court has evoked the authority to overrule decisions prospectively. “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”.125

Per incuriam and obiter statementsCourts are not bound to follow earlier decisions where the previous decision was reached per incuriam or through lack of care. This method is not popular since judges seldom give judgments, which do not accurately reflect the law.

Courts are also not bound to follow obiter statements. Although in future cases obiter dictum may become ratio decidendi, in the interim they cannot be treated as authoritative.

Distinguishing precedent“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”.126 If a precedent can be distinguished on the facts, it does not have to be applied whether it is binding or persuasive. To distinguish a precedent there must be a material difference in the facts of the precedent and the current case. In the later case the judge will be expected to justify why the distinction was such as to necessitate the departure from the precedent, and to allow the application of a different rule of law. Counsel will assist the court in this process. However there are critics who hold the view that the practice of distinguishing precedent is now very narrow, which has caused the process to become very artificial.127

Reversing a decisionReversing a decision is completely different from distinguishing a decision. When a decision is altered on appeal, it is said to have been reversed. It is only the particular case that is affected. In comparison, overruling affects the rule of law or legal principle upon which the decision is based. In other words it affects the entire body of law.

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 such circumstance the judge must create a precedent in accordance with general principles. Such cases are described as cases of first impression. In strict theory, these run contrary to the [rationale] of the doctrine of precedent, for here, the judge is required to create law rather than to apply it.”128

124 Jones v. SOS for Social Services [1972] AC 944, p 1026 per Lord Simon; [1972] 1 All ER 145.125 Op cit, Antoine, p 94126 Op cit, Antoine, p 95127 Gilmore, G. Legal realism: its causes and cure (1961) 70 Yale LJ 1037128 Op cit, Antoine, p 96



Advantages and Disadvantages of the Doctrine of Judicial Precedent

The doctrine of judicial precedent has the advantage of legal certainty. In Gallie v. Lee129, it was found that the House of Lords were not free to override its own decisions, even though it had given itself the ability to do so.130

Some disadvantages are:

1. The location of legal principles is difficult because of the volume of reported case law.

2. The process of distinguishing precedent gives rise to the danger of illogical technical distinctions, which can lead to the absurdity and excessive legalism.

3. It causes rigidity within the legal process. This is the most serious disadvantage of the doctrine.

The Declaratory Theory and the Overruling of Precedent – New Developments

Courts are very cautious about overruling precedents. The reasons are it will affect certainty in the law as well as disrupt financial agreements. Courts will only overrule a precedent if it is clearly wrong.

This was the case in Miliangos v. George Frank (Textiles) Ltd131. Hence the House of Lords overruled its own previous decisions to the effect that when the court quoted judgment debts, it was to do so in sterling.

The reluctance to overrule is closely connected to the declaratory theory of the common law. The declaratory theory assumes as fact that the rules of common law have existed from time immemorial. This means that the common law cannot be changed it can only be restated correctly. Therefore the judge does not create or change the common law; he merely finds the correct statement of law and declares it. So if a higher court overrules a lower court, it will be on the grounds that the law had been misunderstood. When the lower court is overruled, it will be as though the incorrect legal principle had never been stated. So judicial overruling operates prospectively.

Even though the declaratory theory has been promulgated for years, it is not accepted that judges do not create law. Lord Wright has questioned how the laws

129 [1969] 2 Ch 17130 However in 1966 the Lord Chancellor issued a Practice Statement on behalf of himself and the other Law Lords to the effect that rigid adherence to precedent may lead to injustice in particular cases, as well as restrict the development of the law. The Practice Statement gives judges flexibility, so that they can refuse to follow a previous decision when ‘it appears right to do so’131 [1976] AC 443



that served during feudal times could have served until and during the nuclear age.132 Ergo law must have been created throughout history.

Consequently jurists question whether the doctrine of precedent is appropriate to modern times. Other jurists view the role of judges as partly declaratory and partly innovative. There is authority for this in the case of Jones v. SOS for Social Services.133

In London Street Tramcars134 the House of Lords found that the decisions bound all other courts as well as itself. However this precedent has been discredited. Because in Practice Direction (Judicial Precedent) [1966] 1 WLR 1234, HL, the House of Lords, “declared that they would in future depart from their own decisions when it appeared right to do so”.135 Their Lordships said that injustices could result from rigid adherence to precedent, as well as restrict the development of the law. This practice direction is regarded as having the force of law, and has been followed.136

“The implication of the new direction of overruling precedent is equally important for the Commonwealth Caribbean, both because of the Privy Council, the highest court in the region – or the Caribbean Court of Justice when it comes into being – will follow it, and because it represents an important philosophical change for all superior courts in the region.”137

This was supported in AG of St. Kitts and Nevis v. Reynolds138. The liberal attitude to overruling precedent was seen in Pratt and Morgan139. Here the Privy Council overruled its own decision in Riley. It found that it was cruel and inhuman punishment, as prohibited under s. 17 of the Constitution of Jamaica to unduly delay the hanging of prisoners on death row.

However the power to overrule a precedent is still exercised, 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, and in England the House of Lords. When the

132 Wright (Lord) Legal Essays, addresses _ 1939, London: Butterworths133 Ibid134 Ibid135 Op cit, Antoine, p 98136 Jones v. SOS for Social Services [1972] AC 944; Miliangos v. George Frank Textiles [1976] AC 443; British Railways Board v. Herrington [1972] AC 877137 Op cit, Antoine, p 98138 [1979] 43 WIR 108139 [1993] 43 WIR 340



pending Court of Justice is constituted, Courts of Appeal in Party States will similarly be mandated to follow this final superior court.”140

Within this hierarchy there have been tensions as illustrated in Cassell and Co. Ltd v. Broome141. That case also established that even though it is possible to depart from conflicting decisions within the tier of the Court of Appeal, this could not happen in relation to the upper tiers. Lord Halsham was noted for saying that the Court of Appeal had “… to accept loyally the decisions of the higher tiers”.142

Generally Courts of Appeal are bound by their earlier decisions. This was established in Young v. Bristol Aeroplane Co. Ltd143. The case also established three instances when the court is not bound. They are:

1. A Court of Appeal can choose between conflicting authorities. The decision that is not chosen is viewed as overruled.

2. If a decision conflicts with the decision of a higher court, a Court of Appeal is bound to refuse to follow its’ own decision. It will be bound even if that conflicting decision has not been expressly overruled. This would apply to a Privy Council decision in the Commonwealth Caribbean.

3. A Court of Appeal is not bound to follow a per incuriam decision.

The Commonwealth Caribbean adheres to this view. In AG of St. Kitts and Nevis v. Reynolds144 ; PC St. Kitts & Nevis the court was of the view that it was:

“… most important in the public interest, that the Court of Appeal should be bound by its own decisions on the question of law, save for the exceptions specified in Young v. Bristol Aeroplane Ltd.”

In regards to the doctrine of precedent, a distinction has to be made between criminal and civil proceedings in the Court of Appeal; precedents may not always bind the criminal division from other decisions of the court. “Primarily, the court will not consider itself bound by its previous decisions in a criminal matter where this would cause injustice to the appellant.”145 The reason for this rule is that criminal matters involve the liberty of the subject. The court is given the discretion to decide in such serious circumstances. This rule has also been extended to the criminal jurisdiction of the Supreme Courts in the first instance146.

140 Op cit, Antoine, p 99141 [1972] AC 1027142 [1972] AC 1027, p 1054143 [1944] KB 718; [1946] AC 163144 [1979] 43 WIR 108145 Op cit, Antoine, p 100146 R v. Greater Manchester Coroner Ex p Tal [1984] 3 All ER 240



This distinction between civil and criminal decisions is accepted and followed here in the Commonwealth Caribbean. So that Caribbean Courts of Appeal in criminal cases will not bind themselves to previous decisions. Regardless of whether these decisions are from Courts of Appeal from other jurisdictions or from pre-independence courts. If a Court of Appeal gave a defective judgment, its correction would be the responsibility of a final appellant court.

But in the region, a Court of Appeal, in a civil case can correct its own error, in exceptional circumstances. The Guyanese Court of Appeal is the forerunner in this regard, for this occurred in Munisar v. Bookers Demerara Sugar Estate Ltd147. In this case the Guyanese Court in an employment law case, departed from an established principle because the previous decision would cause injustice.

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. For instance in Fisher v. AG of the Bahamas148, 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.

But the Privy Council is reluctant to depart from previous decisions. It will only review decisions if a new point of law has arisen.

The decisions of the Privy Council must be followed by Courts of Appeal, High Courts or Supreme Courts and all other lower courts; at least those from their own jurisdiction, and treat then as binding. When two Privy Council decisions conflict the lower court can follow the decision it finds more convincing149.

“Until the pending Caribbean Court of Justice outlines its own policy on binding precedent, the question is open. Nonetheless, 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”.150

High CourtsThe judgments of High Courts are first instance decisions. Therefore, technically, a decision from one High Court is not binding on another High Court judge. If there is a conflict the latter decision is to be preferred.

147 [1979] 26 WIR 337148 Unreported PC Appeal NO 53 of 1997149 Smith v. Commander of Police [1980 – 83] CILR 126, p 129150 Op cit, Antoine, p 102



In the Caribbean we follow this rule to ensure certainty in the law. A High Court decision is binding on all inferior courts including magistrate’s courts and tribunals. In practice the decision of a High Court judge is persuasive; High Court judges do not like departing from precedents given by other High Court judges.

If there is a conflict the latter decision is to be preferred, if it was reached after full consideration of the earlier decisions. This principle was declared by Denning in Minister of Pensions v. Higham151.

Decisions from Magistrate’s CourtsDecisions emanating out of magistrate’s courts are not significant in the doctrine of precedent. One reason is these decisions are rarely reported in law reports, so it would be difficult to locate the judicial precedent. Furthermore these precedents would not bind any other court, because magistrates’ courts are the last in the hierarchy of courts. Magistrate’s courts do not bind themselves to their own decisions, but they are expected to be judicially consistent.

The Caribbean Perspective – Difficulties in the Operation of Precedent

“While in theory, the legal systems of the Commonwealth Caribbean adhere to the strict theory on the doctrine of judicial precedent, the doctrine may not always operate in the way in which it was intended. This is due to the peculiarities in the region’s legal systems which relates both to structure and outlook.”152

Problems in the Hierarchical Structure of Courts

The doctrine of precedent needs a hierarchical court system in order to work well. In each Commonwealth Caribbean state this is not a problem. But when the region is considered as a whole, clarity is lost.

With the exception of Guyana, all Commonwealth Caribbean Courts share the Privy Council as their final Court of Appeal. This fact gives rise to a psychological relationship between those courts. In addition we share political, sociological and economic similarities as well as CARICOM – in other words, we share an identity. This promotes unity; but it also causes confusion because it is not easy to reconcile the status of decisions emanating from the hierarchy. Marie Belle Antoine feels that “the approaching Caribbean Court of Justice will not automatically resolve those difficulties”153.So it is not easy to say which courts will bind which. For example do the decisions of pre-independence courts bind modern day courts? In addition to this, how should we treat judgments from sub-regional courts and previous regional courts, such as the Court of Appeal of the Organisation of the Eastern Caribbean States (OECS) or the defunct Federal Supreme Court?

151 [1948] 2 KB 153152 Op cit, Antoine, p 103153 Op cit, Antoine, p 104



Added to the problem is that, due to a shortage of human resources, the same judges man both the High Court or Supreme Court and the Court of Appeal. The complexity of the above issues is compounded when we consider the inadequate system of law reporting in the region.

Pre-Independence CourtsThe precedence from pre-independence courts is persuasive rather than binding. The defining authority for this is Hanover Agencies v. Income Tax Commission154. 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’. Judicial comity means the respect courts of equal status accord to each other. 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. It stated that the court was established as a superior court of record by the Constitution (s. 103), and was a distinct and separate body even though the jurisdiction and powers of the former Court of Appeal were vested in it (s. 8 Judicature (Appellate Jurisdiction) Law 1962). 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 authority155. The Hanover case was seminal, it was decided during the period just after independence, when the Court of Appeal of Jamaica was newly constituted, and Caribbean judges were perhaps not yet accustomed to their newfound freedom.

Students are reminded that Guyana abolished the Privy Council as the court of last appeal.

Decisions from other Caribbean Courts of AppealDecisions from other Courts of Appeal in the Commonwealth Caribbean are persuasive and not binding authority. This was held in the case of Aziz Ahamad v. Raghubar156.

Sub-regional CourtsAcademically decisions from sub-regional courts are more problematic. Regional courts can be treated as either:

1. A court sitting in several Jurisdictions; or

2. A separate Court of Appeal for each jurisdiction.

If sub-regional courts are treated as a separate Court of Appeal for each jurisdiction, then their decisions would be merely persuasive. But if the court was treated as sitting in several jurisdictions, the decisions would be treated as

154 [1964] 7 WIR 300155 (1964) 7 WIR 300, pp 306-07, per Waddington JA156 [1967] 12 WIR 352



binding. The former approach seems more correct. The OECS is different from the Privy Council because it was constituted deliberately and formally as a regional court.

In practice the status of decisions do not cause difficulties. The OECS Court of Appeal treats them as binding.

Decisions of the Privy Council

Privy Council decisions originating from one Commonwealth Caribbean jurisdiction will usually bind other jurisdictions in the region. But if the decision is felt to be wrong, there is support for the view that a Court of Appeal of the region could refuse to follow the precedent.

Even though the notion that a Privy Council decision from one jurisdiction can bind another, seems like a relic from colonial rule it is a modern day issue. In R v. Singh157, 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 …”158. The justification for this approach is to promote uniformity I the common law world.

“A Privy Council decision from another jurisdiction is sufficient to allow a Court of Appeal to depart from its own previous decision. This is a deviation from the rule that a Court of Appeal should not so depart, discussed above”.159 For example in Williams v. R160, the Trinidad and Tobago Court of Appeal was faced with four conflicting precedents. They were a Privy Council precedent from Jamaica, English precedents, precedents from other common law jurisdictions and its own previous West Indian decision of Johnson v. R161. The court decided that the Jamaican Privy Council decision overruled Johnson v. R and was the correct one. Commonwealth Caribbean courts rarely deviate from Privy Council decisions, regardless of where it originates.

The Guyanese Court of Appeal is not bound by Privy Council decisions as appeals to the Privy Council have been abolished.

The Relationship between Caribbean Courts and English Courts

The doctrine of precedent operates on the assumption of a hierarchy of courts. With the exception of Guyana, The Privy Council is the apex of the judicial system of the Commonwealth Caribbean. But the Privy Council has violated this

157 [1963] 5 WIR 61158 Op cit, Antoine, 107159 Op cit, Antoine, 108160 [1974] 26 WIR 541161 [1966] 10 WIR 402



philosophy by adopting decisions of the House of Lords as the basis of it judgments. Caribbean courts are in turn bound.

“The Privy Council has ostensibly acknowledged House of Lords decisions as binding, as seen in Abbot v. R162 thus presuming a nexus between itself and the House of Lords. The practice was also demonstrated in the case of King v. R163, a Jamaican case, where the Court of Appeal viewed the English decision of Karuma164.”165

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. Because the House of Lords is not apart of the Commonwealth Caribbean hierarchy of courts.

“Where a decision of the Privy Council conflicts with a later decision of the House of Lords which expressly states that the earlier decision, which the Privy Council had followed is wrongly decided, it may be legitimate for a Caribbean court to ignore the Privy Council decision and follow that the House of Lords.”166 Jamaica Carpet Mills167 is an example of such an opinion. Here the Court of Appeal of Jamaica decided the case according to a House of Lords decision168 , which was viewed as being the authoritative precedent on the question and point of ‘common law’. As a result the court felt justified in not following a conflicting but corresponding Privy Council 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.

(ii) the House of Lords has adverted to and indicated where in lay the error of the earlier decision; and

(iii) if the matter were to come up before the Privy Council, it would be bound to respect the later decision of some of its members sitting in another place”.169

It should be noted however that this rule is not absolute. Differences in statute, local circumstances and custom will work against acceptance.

Judicial Precedent and the Declaratory Theory in the Caribbean

162 [1978] 1 WLR 1342, PC; [1977] AC 755163 [1968] 12 WIR 268164 [1951] AC 197165 Op cit, Antoine, p 111166 Ibid167 [1986] 45 WIR 278168 Miliangos v. Frank Textiles [1976] AC 443; [1975] 3 All ER 801169 [1986] 45 WIR 278, pp 292 – 93, per Carey J



If the declaratory theory of law is accepted, 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.

This view assumes that once the legal principle is declared, all jurisdictions, which belong to the common law world, are bound. Logically and according to the strict theory of judicial precedent, 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, and we are apart of that system.

This curtails the development of West Indian jurisprudence, because English common law bind Caribbean Courts. Consequently Commonwealth Caribbean judges have no authority to:

1. overrule precedent; and

2. shape West Indian law; or contribute to the development of the common law.

Rose-Marie Belle Antoine asserts that the declaratory theory is not reflected in Commonwealth Caribbean decisions170. We treat English decisions as containing unchangeable rules that automatically apply to the Commonwealth Caribbean. This treatment applies to decisions from lower or inferior courts as well. The development of a unique jurisprudence within the region is therefore undermined.

Caribbean Courts have however been prepared to reject precedent where local circumstances are different171. They concede to House of Lords decisions only to the extent that they promulgate a point of common law of general application.

Codified Common Law

When Caribbean statutes are based on English law, they are interpreted as if corresponding English decisions are binding. Trimble v. Hill172 contains dicta, which suggests that at least in respect of identical statutes, English decisions are binding. However it was suggested that such English decisions were only persuasive in Jaganath v. R173.

The Jamaican Court of Appeal actually rejected the argument that Privy Council interpretations of identical statutes should be binding on another jurisdiction174. They were of the view that such precedents were to be entitled to respect, but were not binding. This approach was endorsed in Jamaica Carpet Mills.

170 Op cit Antoine, p 113171 Jamaica Carpet Mills (1986) 45 WIR 278, pp 292 - 93172 [1879] 5 App Cas 342, PC173 [1968] 11 WIR 315174 R v. Barbar [1973] 21 WIR 343



It is thought “that such English decisions should be used merely as guides to statutory interpretation, as held in the case of Chettiar v. Mahatmee175.”176 One reason is, the interpretation of an English statute, by an English court may not reflect the intentions of a Caribbean legislature for adopting that statute.

The status of identical statutes is limited by two rules:

1. The ‘local circumstances rule’; and

2. Statutes must not be contrary to the policy of the local legislation as expressed in statute.

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. This rule was illustrated in AB v. Social Welfare Officer177. 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, the court departed from English dicta that limited a grandmother’s ability to adopt children.

The second rule is self-explanatory.

3. Classification of Law:

(i) reasons for classification178;

Classification aids in teaching exposition and writing of what on the surface is a jumbled mass of material; so too for those who are concerned with its administration. The Police, Custom Officers and others will be daily confused if they were concerned with the whole. Consequently they are only concerned with that segment of the law classified as the Criminal law and import/export trade law respectively. Also, 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.

(ii) classification bases;

The law can be classified according to subject matter and in so doing, arranged in alphabetical order, e.g. Administrative Law, Agency Law, Banking Law, Business Law, Constitutional Law, Comparative Law, Criminal Law and so on.

(a) subject matter – for example, Contract, Crime, Tort;175 [1950] AC 481176 Op cit, Antoine, 117177 [1961] 3 WIR 420178 The notes in topic 3(i) and (ii) are from the notes prepared by CXC



Contract – two or more people who form an agreement, which they intend to have legal consequences, have formed a contract. So if there is a breach of contract the parties can go to court to obtain a remedy.

Crime – when people sue each other they are involved in a civil suit or action. In criminal matters actions are prosecuted by the state. A crime is a public offence against the State. The object of a criminal charge is not to compensate the victim; it is to punish the offender.

Tort – “The law of torts deals with the enforcement of duties existing between individuals as members of society”.179 A breach of those duties may be both a crime and a tort, for example battery, trespass, and nuisance. A party who has been injured in tort, has a right to be reimbursed in damages for the wrong committed. This wrong is called a “tort”. It is a civil wrong independent of contract. Tort arises out duties imposed by law and not by agreement. Nuisance trespass and slander are well-known civil wrongs.

Trust – when persons hold property for the benefit of others example land, a trust is formed. People may do this for example when people want to provide for their children when they die. Trustees will be appointed to look after the property but will not benefit from it themselves.

(b) functional – for example, substantive and procedural;

The function that the law serves is also a basis for classification. The laws that create rights and obligations or recognise and protect such rights e.g. the provisions of your Constitution that recognise and protect that group of rights called fundamental rights, are referred to as substantive laws. While procedural laws are those that lay down the procedure to be followed to vindicate or defend that right. 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. Having arrested you, the law lays down the procedure that must be followed by him and the Court for the proper determination of the case.

(c) conceptual – for example, private law and public law.

Subject matter law can also be classified on the basis of the involvement of the state as a party. Those subject areas with the state as a party are referred to as Public Law e.g. Administrative Law, Constitutional Law, Criminal Law and Revenue Law. Where the law is concerned with parties in their private capacity,

179 Dillavou and Howard, Principles of Business Law, p 7



those subject areas are referred to as Private Law e.g. the Law of Contracts, Torts, Company Law, Conflicts of Laws.

Law is divided into private and public law. Private law relates to people personally in everyday transactions. It also concerns private bodies and associations. Private law includes tort, contract commercial law, family, property and trusts 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. These relationships form the basis of administrative and constitutional law. Crimes which involve the State’s relationship with the power of control over the individual, is the concern of public law.

4. Courts:

(i) Criminal and Civil Courts – structure and hierarchy:

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;

The Court System of the Commonwealth Caribbean

The Commonwealth Caribbean legal system is modeled on the English legal system. However the power to create and regulate our court systems is derived from our constitutions and other local statutory instruments. We have been able to do so since independence, this was affirmed in Hinds v. R180.

The court system is based on a three-tier structure. At the apex of the structure is the Judicial Committee of the Privy Council; this court is based in England. The Privy Council is the final Court of Appeal for all the territories of the Commonwealth Caribbean except Guyana. Soon the Caribbean Court of Justice may replace it. In the second rung of the structure are superior courts (or courts of record). Finally are the inferior courts. In Jamaica there is a fourth rung. This rung falls between the superior and inferior courts – an intermediate court.

There are other specialised courts, which are not included in this hierarchy, which are found in the region. These courts may be inferior, intermediate or superior courts but because they are specialist courts they cannot be included in the hierarchy of ordinary courts. 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 the region. In the Commonwealth Caribbean there is one regional court

180 [1976] All ER 353



Inferior courtsInferior courts (or courts of summary jurisdiction) are the lowest ranking courts in the legal system. They comprise magistrates’ courts and petty sessional courts. These courts do not have appellate jurisdiction. Petty sessional courts usually have criminal jurisdiction. They/their:

(i) grant bail;

(ii) issue summonses & warrants of arrest;

(iii) justices of the peace & magistrates can deal with persons who have committed indictable offences. This means they can examine an accused to determine whether they should be committed to High Court for trial by jury.

(iv) have a summary criminal jurisdiction, so they are able to deal with minor offences if a statute has conferred such jurisdiction on them.

(v) magistrates or justices of the peace have jurisdiction over juveniles and maintenance of children, in most territories.

(vi) handle quasi judicial matters such as applications for liquor licences.

Appeals from petty sessions go to the High Court.

Coroner’s Courts are included among courts of inferior jurisdiction. The coroner (or chief officer) is usually a magistrate who sits with a petty jury. The court examines the circumstances or causes of suspicious or unnatural death. They do this by conducting inquiries, which are called inquests. The verdict is called ‘inquisitions’.

Magistrate’s Courts are another inferior court. Stipendiary magistrates operate them. The procedure operated by inferior courts is labeled ‘summary’. Summary procedures are quicker than in superior courts, because a jury does not sit. “The jurisdiction of inferior courts is severely limited, either by placing a monetary limit determined by statute to the type of offence which may be heard, or by restricting the jurisdiction to particular types of offences. The jurisdiction of magistrates’ courts is conferred by statute. It is diverse and voluminous.”181 The fines which magistrate’s impose are fixed by statute. Usually, appeals from magistrates’ courts go to the Court of Appeal. But in Barbados, appeals “go to a special division of the High Court called the called the Divisional court”182.

Inferior courts have a dual function; they investigate and try criminal matters. Superior courts do not do this. Trials in magistrate’s court are conducted by

181 Op cit, Antoine, p 216182 Ibid



magistrates, they try summary offences. Summary offences are offences, which are required to be tried summarily, by statute. Because of their criminal jurisdictions magistrate’s courts must also hold preliminary inquiries into indictable matters. They do this to determine if there is enough evidence for the matter to be sent to High Court.

In some situations, inferior courts can try indictable cases. But the accused is first given the choice of trial by jury183 or summarily. These offences are called ‘hybrid offences’. This is a recent legislative development. Where there is no jury, if the accused is found guilty the penalties are usually harsher.

If a hybrid offence is tried summarily, the accused still retains the right to appeal to the Court of Appeal184.In hybrid offences a judge can decide whether or not an accused will be allowed to proceed summarily. So if an accused chooses summary trial and then changes his mind, the judge may refuse this request if suspects that the accused is trying to delay his trial185.

In civil matters inferior courts have limited jurisdiction. The jurisdiction is limited by monetary value as well as the nature of the offence. For example they cannot try civil suits in tort such as libel and slander. They also cannot try cases such as probate matters, seduction and land title disputes.

Inferior courts cannot offer certain types of remedies. This differentiates them from superior courts. The remedies they offer will be limited by statute as well as jurisdiction. Inferior courts will have branches located in different parts of the country. While the superior court will be centrally located, Inferior courts do not sit with a jury.

Resident Magistrate’s Courts are unique to Jamaica. It is an intermediate court. The court is similar to county courts of England. Ordinary magistrates’ courts are operated by stipendiary magistrates. Resident magistrates, who are assisted by court clerks who are legally qualified, operate resident magistrates’ courts. A bailiff will also assist the resident magistrate. 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. Resident magistrates have a wider jurisdiction than stipendiary magistrates. They can try indictable offences as well as civil cases in excess of the statutory monetary limits186 of magistrates’ courts.

Superior courtsThe superior court (or court of records) is comprised of two courts. They are the High Court and the Court of Appeal. The jurisdiction, powers and authorities of 183 That is, at High Court184 Kwame Apata v. Roberts (No. 2) (1998) 31 WIR 219185 Chadee v. Santana (1987) 42 WIR 365186 Which is currently $1,000.00, in other territories it is $500.00



these courts is conferred on them by the constitution or any other law187. Collectively both courts are known as the Supreme Court.

The High Court is the Court of First Instance or the trial court. The Court of Appeal carries out the appellate function. It should be noted that the names of these courts may vary form territory to territory. In Belize the High Court is called the Supreme Court and the Court of Appeal is called the Court of Appeal.

In electoral cases the superior courts have jurisdiction. Electoral disputes are confined to the High Court and Court of Appeal. The High Court will determine matters concerning membership of the legislature (whether it is the Senate or House of Assembly). In Barbados, Belize and Jamaica the decision of the High Court is final. But the other territories such as the OECS states an appeal can be made to the Court of Appeal, but no appeals cannot be made from the Court of Appeal.

The superior courts also exercise a supervisory jurisdiction over statutory bodies and statutory powers. This jurisdiction is inherent. The procedure and operational details of this court are laid down in the Supreme Court of Judicature Acts in the region. The Act also describes the functions and jurisdictions of the various courts. Also the courts are given the power to create court regulations or rules.

High Courts have both an original and an appellate jurisdiction. In its appellate function it will hear appeals from summary trials coming from inferior courts such as petty sessional courts. Sometimes, in certain instances the High Court will hear appeals from administrative tribunals on points of law. Please remember in Barbados appeals from magistrates’ courts go to a special division of the High Court called the Divisional Court. The High Court tries both criminal and civil matters as a Court of First Instance. Its’ jurisdiction in these matter is unlimited. 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. High Courts hear actions in equity, common law, divorce and matrimonial causes, probate bankruptcy and admirality matters. However if inferior courts can handle less serious matters, the High Courts will focus on the more important civil cases.

High Courts have criminal jurisdictions over all treasons, felonies and misdemeanors. The court tends to try the more serious indictable offences. 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. Appeals from this court go to the Court of Appeal. In Trinidad and Tobago sometimes it is possible to go straight to the Privy Council.

A very significant function of the High Court or Supreme Court is that applications for judicial review are made within its jurisdiction. So they are viewed as the ‘guardians’ of the constitution. If someone is seeking redress for a violation of

187 Such as common law and equity



fundamental constitutional rights, a constitutional motion to the Privy Council188 is also available, where the application for redress to the Supreme Court failed.

Courts of Appeal only have appellate jurisdiction. Because the court is not reviewing evidence or facts of the case it sits without a jury. An uneven number of judges usually sit the number is generally three. The Court of Appeal hears appeals from the High Court and from magistrate’s courts. Civil appeals from the High Court are as of right. Criminal appeals however are limited to the following:

“(i) against conviction on any ground which involves a question of law;

(ii) with leave of the Court of Appeal or upon the certificate of the trial judge that it is a fit case for appeal; and

(iii) with leave of the Court of Appeal against sentence where that sentence is not one fixed by law.”189

The Court of Appeal also hears appeals from decisions of special courts such as quasi-judicial bodies. For example the Court of Appeal of Trinidad and Tobago hears appeals from the Industrial Court of Trinidad and Tobago.

The Caribbean Court of Justice & the Privy Council

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. This Court will be called the Caribbean Court of Justice. It will be the final Court of Appeal of the States who ratify the agreement. Therefore the Privy Council will be replaced.

Whether the court will come into being depends on whether appeals to the Privy Council are abolished. The governments of the region will need special parliamentary majorities or public approval in order to do this. Barbados and Jamaica have recently ratified the Agreement at the 24th Meeting of the Conference of Heads of Government of the Caribbean Community190. Only Barbados, 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.”191

But there is still opposition to the abolition of the Privy Council within the Caribbean Community. But the Agreement requires only three Contracting Parties in order for it to enter into force. Antoine feels that the court will be established before there is unanimous agreement by CARICOM192. If a 188 In the future this motion will be made to the Caribbean Court of Justice189 Op cit, Antoine, p 219190 2 – 5 July 2003 Montego Bay Jamaica191 Op cit, Antoine, p 227192 Ibid



Contracting Party wants to leave, a notification period of three years is required, so it will be difficult to leave the court.

Presently the Judicial Committee of the Privy Council is the final Court of Appeal in the Commonwealth Caribbean except in Guyana193.

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. A President will head it. Heads of Government can change the number of judges that can sit in the court194. It has been decided that the court will be based in Barbados. But if circumstances require it, the court can sit in the territory of the Contracting Party. The court may also sit in two divisions comprising of at least ten members.

The appointment, removal and discipline of judges is the responsibility of the specially created Legal Services Commission. It will also determine their terms and conditions of service. Only a qualified majority of three-quarters of the Contracting Parties, in conjunction with the recommendation of the Legal Services Commission can appoint or remove the President.

To be appointed, 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 time195.

Jurisdiction – The Caribbean Court of Justice will have original jurisdiction. But this will be limited to interpreting the Chaguaramus Treaty which established CARICOM and laid down its’ sphere of operation. 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 bought196.

Appeals to the Caribbean Court of Justice in respect of categories of appeal will be the same as the Privy Council’s. That is, there will be appeals:

(i) as of right;

(ii) with leave; and

(iii) those with special leave.

The nature and substance of the court’s jurisdiction will also be similar to that of the Privy Council’s. In civil proceedings if the matter involves a question of great or general importance, an appeal will lie with leave from the Court of Appeal of 193 This was abolished under the Judicial Committee of the Privy Council (Termination of Appeals) Act (1970)194 The Agreement, Article IV, 1 & 3195 Ibid, Article IV196 Ibid, Article V



the Contracting Party. 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.

Contracting Parties will be permitted to allow other categories of appeals in ‘such other cases as may be described by law of the Contracting Party197.

The Privy Council became our final Court of Appeal because of colonialism. The Court is based in England. Even though most countries in the Caribbean are independent, the Privy Council retains its’ jurisdiction in the Caribbean, but the nature of it has changed.

Although there is provision for this, few West Indian judges are appointed to the Privy Council.

The Privy Council’s jurisdiction as the final Court of Appeal is very restricted. There are two ways to appeal to the Privy Council. 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. The grounds for appeal to the Privy Council are laid out in the constitutions of the commonwealth Caribbean198. 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.

If the matter is civil or criminal but involves a question of constitutional interpretation, the right of appeal will be ‘as of right’. The appeals are not limited to final judgments. Interlocutory judgments can be appealed as well provided the statutory monetary limit is met. Appeals concerning divorce are also ‘as of right’. There can also be appeals from industrial courts199.

In civil proceedings if there is a question, which is one of great general public importance or otherwise ought to be submitted to Her Majesty in Council for decision200, the local court has the discretion to grant an appeal to the Privy Council. In addition to this, special leaves of appeal are available to the Privy Council. This is because of the Sovereign’s prerogative in either civil or criminal cases or where leave has been refused.

In instances where fundamental constitutional rights or freedoms have been violated (these are entrenched rights), there is a right of appeal201 to the Privy Council. The Privy Council is generous with respect to jurisdiction when it comes to constitutional issues, as there are no strict requirements for leave to appeal.

197 Ibid, Article XI (d) and X 2(b)198 Jamaican Constitution s. 110199 Sunday Workers v. Antigua Hotel Tourist Association [1992] 42 WIR 145200 Jamaican Constitution s. 110201 However the should be noted that the Privy Council uses this discretion sparingly. As a matter of fact the Privy Council has often itself limited the exercise of its appellate jurisdiction



But the individual must first exhaust his local alternatives. However no right of appeal lies in certain cases, such as those relating to electoral disputes202. Additional rights of appeal may be prescribed by the legislatures of all jurisdictions.

Self-limits on jurisdiction – The Privy Council often limits its’ exercise of its’ appellate jurisdiction. Some examples are:

1. It uses its’ discretion to grant leave in criminal matters sparingly. It will not grant leave unless there is a violation of due process or some other grave miscarriage of justice.203

2. If there is a clear departure from the requirements of justice it will exercise its jurisdiction.204

3. The Privy Council will grant special leave if there are questions of great and general importance, which are likely to occur often. In Reid v. R205, identification evidence in Jamaican capital offences was frequently misused. After several years of lobbying, the Privy Council was finally convinced that the issue was important and frequent enough to be addressed.

4. The Privy Council will not act as the Court of First Instance. So if evidence or a point of law was not heard in the lower court, it will not grant leave to hear them.206

5. The Privy Council does not review facts or evidence, because it does not benefit from the presence of witnesses, nor is it familiar with the circumstances of the local courts.207

6. The Privy Council does not change the amount of damages awarded by the local courts.208

Consequently it would not be true to say that the Privy Council operate as a full appellate court.

202 Russell et al v. AG (1997) 2 Carib LB 1203 Re Dillet (1887) 12 AC 459, PC204 Riel v. R (1885) 10 AC 675205 [1989] 3 All ER 340; [1989] 37 WIR 346206 Baker and Another v. R [1975] 23 WIR 463207 John and Others v. DPP for Dominica [1985] 32 WIR 230208 Selvanayagan v. UWI [1983] 34 WIR 267



Family CourtThe Judicature (Family Court) Act 1975 of Jamaica209 created the Family Court. This court has jurisdictional powers over all legal proceedings in relation to family life. However it does not hear divorce cases. The Family Court is the first of its kind in the region. Belize and St. Vincent have followed suit, but the idea has not taken root in the remainder of the Commonwealth Caribbean.

The court’s jurisdiction depends on the priority given to the court and the nature of the problem. Some courts have summary jurisdiction and others are Superior Courts of Record. For example some family issues may be crucial to a country so a superior court may be chosen.

The Family Court was needed because laws were inadequate when it came to realities such as concubinage and illegitimacy. Our jurisprudence has attempted to reflect the needs of the West Indian family, for example the concept of illegitimacy has been abolished, but more reform is needed.

“The Family Court has an obvious sociological thrust”.210 The aim of the court is to prevent the breakdown of the family unit. It particularly seeks to protect children as well as other family members. If this does not work the court tries to administer family laws and to quickly rehabilitate those who seek help.

Family court personnel are specially trained. 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). Non-legal staff is trained in legal procedure and legal staff is given a sociological orientation. The court coordinator who is the court’s administrator heads the non-legal staff.

In Jamaica the Family Court is an intermediate court, therefore it has equivalent status to a resident magistrate’s court. Consequently the two judges have the same status as the resident magistrate. In St. Vincent & Belize the court is equivalent to the magistrate’s court. With necessary adaptations, the procedures of the resident magistrate’s court apply to the family court.

Now, in Jamaica, the Family Court is a Court of Record by virtue of s. 3(1) of the Judicature (Family Court) Act 1975. The court’s jurisdiction is not entrenched, because this will leave room for future change in the court’s jurisdiction.

Acts such as the following give the court express jurisdiction in the matters the Acts address:

(i) Affiliation Act (1926);(ii) Children (Adoption of) Act (1958); and(iii) Children (Guardianship and Custody) Act (1957)

209 As revised the 1995 Act, which establishes the Family Court as a Court of Record210 Op cit, Antoine, p 259



Juvenile CourtsIn the Commonwealth Caribbean juvenile courts tend to be courts of summary jurisdiction that specifically hears charges against children or young people. 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 guidance. The court tends to look into the welfare of these children. The court also tries to address the problem of street children or those who just need care.

Juvenile courts work in tandem with certain social institutions such as the Probation Office and Social Welfare Department. The jurisdiction of the court encompasses three main groups:

“(a) juvenile offenders;

(b) juvenile offenders in need of care and protection; and

(c) juveniles deemed to be beyond control”211

There are special procedures for arraigning and trying juveniles who commit offences. They cannot be taken before a magistrate for instance. Juveniles are imprisoned only in exceptional circumstances. Hearings are informal, because the aim is to assist the juvenile.

In Jamaica, juvenile courts are headed by a resident magistrate as chairman and two justices of the peace, usually one of whom is a woman. The court sits in different parishes as often as necessary, usually once per week. Juvenile courts usually sit in a separate building from the ordinary courts of law. Juvenile hearings are heard in camera212.

(ii) personnel, jury, jurisdiction and procedure213;

The Judiciary - Jurisdiction

Because of the doctrine of the ‘separation of powers’ the independence of the judiciary is embedded in the constitutions of the Commonwealth Caribbean. Another facet of the doctrine is the jurisdiction of the judiciary. Under the doctrine:

1. the court’s monopoly of judicial power is protected; also

211 Op cit, Antoine, p 263212 Only authorised persons are allowed into sessions, the public is excluded213 Personnel, jurisdiction and procedure are looked at when considering each court consequently heading 4(II) focuses only on the jury and judicial jurisdiction



2. the jurisdiction of specified courts is also protected.

The court’s monopoly of judicial power is a part of constitutional law in Jamaica (and so the remainder of the Commonwealth Caribbean). This was so found in the case of Hinds v R. This case decided that only a court can exercise judicial power. 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. Just because a judge acts in his official capacity does not necessarily mean that he is exercising his judicial function214.

For the legal system to administer justice judiciary must be independent. This means that there must be the institutional independence of the court and that there must be security of tenure. Salaries and allowances are expected to be generous in order to ensure independence and impartiality. Judges are also free from civil and criminal actions for anything said or done while on the bench, even if it seems to be without cause.

The constitutions of the region provide for the appointment, tenure and removal of judges. For example the Jamaican constitution establishes a Supreme Court, which is headed by a Chief Justice as well as senior puisne judges215. A Court of Appeal is also established which is headed by a President, Chief Justice and three other judges it also makes provisions for the appointment of other judges as may be prescribed by Parliament216. The arrangement of the work of the court is the responsibility of the President of the Court of Appeal; whenever he is sitting in that court he will preside217.

In the Commonwealth Caribbean the Chief Justice and puisne judges are appointed by the Head of State i.e. the Governor General (or President if the territory in a republic). The Prime Minister recommends them for the posts after consultation with the Leader of the Opposition.

The required qualification of judges will be found in the various Supreme Court of Judicature Acts of the region. Usually they need to be a legal advocate of at least ten years standing.

Judges may be removed for misconduct, corruption and infirmity. Only a Judicial Committee can remove a judge, but first there must be an investigation by a tribunal of two or more persons218.

The Jury System

214 Williams et al v. The Queen [1997] 2 Carib LB 75, PC Jamaica215 Jamaican Constitution s. 97(1) & (2)216 Jamaican Constitution s. 103(1) & (2)217 Ibid218 Barnwell v. AG and Another [1993] 49 WIR 88



Trial by jury is a fundamental element of democracies. It is a way of ensuring that the justice system is fair. It used to be viewed as the cornerstone in the administration of common law but now its’ use is on the decline.

Whether or not a jury is used depends on whether the matter to be tried is civil or criminal. If is criminal it will depend on whether it is an indictable or summary offence. A jury is composed of twelve members in murder and treason trials. In ordinary criminal and civil matters the jury consists of nine. The purpose of the jury is to judge facts as opposed to law.

“In contemporary times, we believe that to be judges of fact, one must come to court ignorant of the facts. Impartiality in adjudicating is therefore based on ignorance of the facts.”219 So if any juror has knowledge of the facts he must state these publicly.

There is no absolute right to trial by jury except in relation to indictable offences. However, Bermuda and the Bahamas have made trial by jury a constitutional right220. This right pertains to criminal cases triable in the Supreme Court. The use of juries in civil cases has declined rapidly. Trial by jury is available221 but seldom used. It is in the judge’s discretion whether a jury should be used, except in defamation or fraud.

_____________________

Students are instructed to read Chapter Sixteen of Rose-Marie Belle’s Antoine’s Commonwealth Caribbean Law and Legal Systems.

219 Op cit, Antoine, p 271220 Under the Constitution of the Bahamas, s. 20(2) (g) and the Bermuda Constitution Order s. 6(2) (g)221 Except in St. Lucia and Guyana



(iii) industrial courts and tribunals, specifically those created by Constitution or Statute;

Industrial CourtsIndustrial Courts or Industrial Tribunals deal with the determination of industrial relation matters. In Jamaica industrial tribunals are separate quasi-judicial bodies.

Trinidad and Tobago has an Industrial Court222. The court is a High Court or Supreme Court of Record, it has jurisdiction to try all labour law matters223. Appeals go straight to the Court of Appeal224. One of the reasons this court was developed is, ordinary courts are not viewed as appropriate for handling labour relation matters – workers/unions never seem to do well. Historically workers unions have been regarded as restraining trade and promoting criminal conspiracy.

Consequently the orientation of industrial courts is unique. They operate by the ‘principles and practices of good industrial relations’; this principle is unknown in other areas of law. Human relations are paramount in these courts/tribunals. Negotiations are more important than legal technique (consequently not all personnel is legally qualified). But they are expected to consider the equitable principle of ‘good conscience’ when examining the merits of a case.

The court’s personnel do not consist of solely legally qualified people. Economists, accountants and personnel who have experience in industrial relations, such as trade unionists, staff it.

The court usually only assumes jurisdiction if conciliatory talks have failed and conciliatory legislation has been exhausted. The court also registers collective agreements.

Service Commissions“Other tribunals that have been established are the several Service Commissions e.g. the Public Service Commission, the Teaching Commission, the Police Service Commissions to deal with inter alia the discipline of the respective category of public servants under their control. Where there is national insurance as in Trinidad and Tobago, there is a National Insurance Appeals tribunals to settle disputed claims for such insurance.”225

Constitutional reform proposals222 Established under the Industrial Relations Act 1972223 Ibid, s. 7224 Sundry Workers v. Antigua Hotel and Tourist Association [1992] 42 WIR 145225 This paragraph was taken from the notes prepared by CXC



“… a process of constitutional review began in 1991 with the formation of a Joint Select Committee on Constitutional and Electoral Reform, charged with recommending ‘the precise form and content of constitutional amendments both with regard to an Electoral Commission and other aspects of reform’.

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 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.226

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

(ii) after consultation with the Prime Minister and the Leader of the Opposition (this being the opinion of the Minority).227

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

226 Public Defender (Interim) Act, 16 April 2000, ss. 13, 14 and 15227 Final Report of the Joint Select Committee (1995), paras 133 – 34



discretion of the Head of State, while the Kerr Commission felt they should be selected from professional, philanthropic, religious and other organisations.”228

(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.”229 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.

ArbitrationArbitration is conducted in a less formal way than conventional trials. The arbitrator listens to the evidence submitted by the parties and then makes a decision in the form of an arbitration award. This award may be binding or non-binding – this will depend on what the parties would have agreed in advance.

MediationMediation is non-adversarial and private. It occurs where one or more neutral persons attempt to facilitate discussions, which will lead to the voluntary settlement of the dispute. After opening statements by all parties the mediator will meet with the parties separately in private (called a “private caucus”). He will try to explore various options with them, and help to draw up a set of terms, which all the parties can agree to in a binding settlement agreement.

Mediation/arbitration – sometimes called “med-arbs”“The parties initially attempt to resolve their disputes through mediation. If agreement is not reached by a predetermined date usually not more than two to three months from the date of submission, the dispute is submitted to arbitration before the same or different neutral as the parties have agreed”.230

228 Phillips, F. Sir. (2002) Commonwealth Caribbean Constitutional Law. Great Britain: Cavendish Publishing Ltd, pp 255 – 256, 259 – 260 229 Op cit, Antoine, p 319230 Britton, P. Alternative Dispute Resolution, 1999, I Guy L. R. 108



ConciliationConciliation is in-court ADR, which involves a judge. It is like mediation. 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, which are not binding on the parties.

Conciliation usually has a less formal structure than mediation. Judges in this form of ADR do not necessarily remain impartial, they may take a view that is inimical to one parties’ position. The judge may conduct the conciliation process as he or she thinks fit, but will be guided by the principles of impartiality, equity and justice.

Conciliation is informal and left to the judge’s discretion. It is not open to the public and the parties are usually heard individually231. Only in exceptional case are both parties summoned together.

If settlement is reached it will be reduced to writing in the form of a conciliation summary, agreement or order. If it is signed by the disputants it is entered thus having the effect of a final court judgment. “232 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, by agreeing to relax the rules of evidence

(b) cost – the process saves on time so costs are reduced;

(c) lack of pleadings – reduces time, costs and formality;

(d) the parties have greater control – they can chose arbitrators;

(e) the parties are the focus of the process so there is a lesser chance of technical injustice;

(f) confidentiality – disputes are resolved in private;

(g) speed – the use of experts in complex legal and technical issues saves time; and

231 To avoid hostility and to create an atmosphere conducive to compromise232 Arocho-Soto, A. Conciliation of Civil Disputes in the Territorial Courts of the (US) Virgin Islands, A Vestige of the Danish Presence in the Caribbean, 1999. Vol. 1 No. 1 Guy L. R. p 74



(h) preservation of relationships – process is informal so it lacks the animosity of the adversarial system;

Disadvantages:

(a) the right of review is limited – this depends on the rules of the jurisdiction and what the parties had previously decided;

(b) if delay is not controlled it can get out of hand;

(c) possible conflict of interest – may arise in choice of adjudicators, the process must be transparent and fair; and

(d) some results are not binding and could lead to further litigation.

5. The legal profession: training, discipline and role of lawyers.

TrainingThe Council of Legal Education oversees legal education in Jamaica.

The usual course of training is completed in two stages. First a prospective lawyer must obtain an academic degree in Law. This course usually takes three years, but completed in two. The first year is pursued at the University of the West Indies (UWI) Mona, Jamaica and the remainder at Cave Hill, Barbados.

The degree is a prerequisite for the Legal Education Certificate otherwise known as ‘the Bar’. This is the final stage of classroom training. This part of qualification is very practical the exams sat are professional, and will test students on matters they will have to deal with in practice.

DisciplineThe legal profession in Jamaica is self-regulatory. The Bar Association is responsible for, amongst other things, disciplining lawyers233. Lawyers can be prevented from practicing (debarred) for very grave offences, such as defrauding a client.

Professional Misconduct in the English Speaking Caribbean

An attorney may commit professional misconduct by failing to “… fulfill his duty, in promoting in his own sphere of interest, the cause of justice”.234

233 In Jamaica, the term ‘lawyer’ or ‘attorney-at-law’ means the same thing. According to The Legal Profession Act (1972) s. 2 any reference to a barrister or solicitor is deemed to be a reference to an attorney-a-law. In the English Legal System there are two types of lawyers (barristers and solicitors) in Jamaica there is only one type (an attorney-at-law), who does the work of a barrister and a solicitor. This is as result of ‘fusion’, which occurred in 1979.234 Nunez – Tesheira, K. (2001) The Legal Profession in the English – Speaking Caribbean. Jamaica: The Caribbean Law Publishing Company, p 187



In the Trinidad and Tobago case, In the matter of Gail Robinson and Beverly Scobie, Solicitors and In the Matter of the Inherent Jurisdiction of the Court, it was noted that:

Unprofessional conduct is not limited to cases where the misconduct charged amounts to an indictable offence235 or is professional in character but extends to all cases where the solicitor’s conduct is improper i.e. such as to render him unfit to be an officer of the court236

The standards of professional conduct in Jamaica is governed by the Legal Profession (Canons of Professional Ethics) Rules. It is prescribed by the General Legal Council pursuant to the provision of section 12(7) of the Legal Profession Act 1971. The Legal Profession (Canons of Professional Ethics) Rules governs and regulates the standards of professional conduct expected of attorneys – at – law.

Other English speaking Caribbean territories have similar Codes/Canons of Ethics. Only Guyana does not have prescribed rules of conduct. However this does not mean that attorneys are not expected to observe standards of professional conduct.

The rules that make up the Codes/Canons of Ethics of other English speaking Caribbean territories, are derived from common law principles. The Canons/Codes of Ethics are just codifications of these principles. Therefore the guidelines provided by common law principles are just as applicable in Guyana.

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 penalties which the Disciplinary Committee and or the court is empowered to impose.”237

The standard of conduct expected from an attorney is high. Therefore even though an attorney may do something that is not automatically punishable as professional misconduct, he may still be penalised. 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.

235 The classification of offences as indictable and summary broadly reflects a distinction between serious and minor crimes. For practical purposes it is the question of trial with or without a jury which is the important distinction between trial on indictment and summary trial. Offences triable only on indictment include any offence punishable by death or imprisonment for life on first conviction236 HCA No. 2 of 1985 Trinidad & Tobago (unreported) at p 24237 Ibid, Nunez – Tesheira, p 187



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.”238

1. 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.

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. The attorney will also be guilty of professional misconduct if he holds a person as a partner, associate consultant or attorney – at – law, when that person is not qualified.

2. Breach of Duty to the Court

An attorney is an officer of the court. Therefore an attorney is under a duty to help in the administration of justice. He is expected to be respectful to the court and to avoid undignified or discourteous conduct, which is degrading to the court. Some examples of breaches of the duty to the court are:

i. deliberately making false accusations against a judge or magistrate;

ii. writing letters to the court which are improper, abusive or threatening that are meant to influence the judge “ … to adopt a cause he would not otherwise pursue”239;

iii. deliberately acting without authority;

iv. knowingly and deliberately allowing a client to swear to an affidavit which is false;

v. “attempting to influence the court by e.g. privately discussing a pending case with the presiding judge”240;

vi. knowingly submitting in court a document that has not been properly stamped as required by the relevant law;

238 Ibid, Nunez – Tesheira, p 188239 Ibid, Nunez – Tesheira, p 189240 Ibid



vii. deliberately making a bad point in order to mislead the court. The attorney only becomes guilty of professional misconduct if he acted dishonestly;

viii. taking part in the creation of evidence known to be false and using perjured evidence or testimony; and

ix. making unfair remarks to the jury, using improper evidence, using irrelevant evidence.

3. Breach of Duty to Client

In General

“An attorney is under a duty to always act in the best interest of his client, to represent him honestly, competently and zealously and endeavour to obtain the benefit of any and every remedy and defence which is authorised by law.”241

For instance in Sankar v. The State242, a Trinidad and Tobago case, the Privy Council found that a defence lawyer had failed in his duty, because he had not explained the legal implications of giving or failing to give evidence at trial. He had failed to give options to the client, even if he, depending on his client’s decision, would feel obliged to withdraw.

Another general duty of an attorney relates to his acceptance of a retainer. An attorney will be guilty of professional misconduct if he attempts to advise, before he has obtained full knowledge of the facts. “He should therefore avoid making bold assurances and beware of rash and confident guarantees especially when his employment depends on these assurances.”243

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, particularly when the prospects of success are non-existent. It should be noted however that clients are free to reject this advice and insist on litigation. 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.244

However on the other hand, an attorney – at – law must not induce his client to settle against his wishes by misrepresentation.245

In Particular

241 Ibid, Nunez – Tesheira, p 190242 46 WIR 452243 Forrester v. Francis CLE 156/1983 Jamaica (unreported)244 Ridehalgh v. Hansfield [1994] Ch 205245 Bartrum v. Hopkinson (1931 – 37) LRBG 69 (Guyana)



“An attorney is inter alia guilty of professional misconduct vis-a-vis his clients in the following specific instances:

(i) Confidentiality

Where he fails or neglects to preserve the confidentiality of his client except if such communication has been made in furtherance of a crime, fraud or other unlawful transaction.

(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.

(iii) Multiple Representation

Where in the case multiple representation, 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.

(iv) Fees

Where he charges fees which are unfair and unreasonable or where he charges fees which are either an over or under-estimate of the services rendered.

(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, the necessary degree of skill, competence and knowledge. In failing to exercise due care and skill in the conduct of his duties an attorney may be guilty of professional misconduct. This Misconduct may, depending on the facts of the case, be compensatory or punitive in nature.”246

(a) Professional Misconduct of a Compensatory Nature – Wasted Costs in Proceedings

If a lawyer, whether acting as a solicitor or barrister, will be guilty of professional misconduct if costs are needlessly incurred or wasted. This may be as a result of failure and default to act competently and/or within a reasonable time. In situations like this the court makes an order of costs against the attorney personally.

In cases like this the court does not exercise a punitive jurisdiction over the offending attorney.

246 Ibid, Nunez – Tesheira, pp 191 - 192



(b) Professional Misconduct of a Punitive Nature

“Although there is some variation in the actual wording, the respective Code/Canon of Ethics of the various territories, provides that an attorney – at – law shall not act with unreasonable or undue delay, negligence or neglect and in the case of Jamaica, inexcusable or deplorable negligence or neglect247.248 Such action constitutes professional negligence and may also constitute professional misconduct. In the case of professional misconduct, a competent tribunal or the court may exercise its punitive jurisdiction.

This is a mandatory rule.

It is important to remember that negligence “ … might amount to professional misconduct if it was inexcusable, and such as to be regarded as deplorable…”249 by other lawyers.250

It used to be thought that professional negligence could not constitute punitive professional misconduct unless the lawyer’s actions were dishonourable or morally base.

For instance in Witter v. Forbes251, an attorney negotiated on behalf of his client with Citibank, who was owed JA$15,000.00 by the former. In a letter addressed to the client, dated January 27, 1979, Citibank proposed a settlement. The attorney did not communicate this proposal until October 1980. Proceedings were brought before the General Legal Council for professional misconduct. 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”.

It was argued that professional misconduct had to involve an element of wrongdoing, deceit or moral turpitude.

It was held that Canon IV (s) had been infringed. It was pointed out that Canon IV (s) did not require the attorney’s negligence to involve dishonourable conduct or moral turpitude.

(vi) Fraud/Misappropriation of Client’s Funds

247 Canon of Ethics IV (s). See also Canon IV (r)248 Ibid, Nunez – Tesheira, p 192 249 Re A Solicitor [1972] 2 All ER 811250 Canon of Ethics IV (s)251 CA 1/1986 Jamaica (unreported)



“As a general rule, any form of fraud or dishonesty committed by an attorney against the interest of his client will be deemed to be professional misconduct. This includes misappropriation of clients’ funds, failure to apply a client’s funds for the purpose for which it was intended, overcharging and failing to keep proper accounts.”252

The Codes/Canons of Ethics of the various territories provide that:

(i) an attorney must never mingle his funds with those of others, and that he should at all times be able to refund money he holds for others; and

(ii) an attorney should keep up to date accurate accounts so that his financial position and that of his clients can be distinguished when required.

It should be noted that the General Legal Council of Jamaica has provided detailed guidelines for the keeping of “… client accounts etc, maintaining of books of assets in respect of client’s money received, held or paid by the attorney and the payment of interest on client’s money.”253

4. Breach of Duty to Profession and Fellow Attorneys

In General

An attorney must behave towards his fellow attorneys with courtesy, fairness and good faith. An attorney should not allow the ill feelings of his clients to affect his relationship with his fellow attorneys.

In Particular

(i) Undertakings

Attorneys must fulfill obligations he has promised to execute in any undertakings254 to the court as well as to his fellow attorneys. Breach of an undertaking constitutes professional misconduct as well as (in appropriate instances) contempt of court.

(ii) Touting and Advertising

252 Ibid, Nunez – Tesheira, p 194253 Ibid, Nunez – Tesheira, p 195254 “An undertaking is a pledge or promise made by an attorney – at – law in his professional capacity to do or refrain from doing some act. Although undertakings may be give orally, they should as a general rule be written or confirmed in writing” - Ibid, Nunez – Tesheira, 156



Attorneys are not permitted to advertise255. However attorneys are permitted to allow dignified identification of themselves as attorneys. Therefore they are allowed to print calling cards, letterheads, office signs or directory listings.

It is also a breach of the Canon of Ethics to tout for custom256. Touting is soliciting for custom fraudulently. It is illegal whether the attorney does it or is done by someone paid by him. If an attorney pays or rewards someone directly or indirectly for getting him work he will be in breach of his professional duty.

5. 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 commission of the offence shall constitute professional misconduct. In this regard, 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.”257

All that is necessary for a finding of professional misconduct is that the attorney’s conduct brings dishonour to the profession generally.258

Once the Court, Disciplinary Committee or other competent tribunal is satisfied about the facts constituting the crime it will not matter:

i. if it is contended that the attorney was wrongfully convicted;

ii. that the attorney was not prosecuted; andiii. that the attorney was acquitted on a technical defence.

For instance in the case Re King259 “… an attorney was convicted at first instance of conspiracy to defraud. On appeal the decision was reversed because the indictment was defective. Upon proceedings to strike him off the Roll of the Court, Denman CJ said:

We must not merely because the indictment is bad in point of law, shut our eyes to the fact that the jury have convicted him of conduct rendering him unfit to be an attorney.Further, 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. All that is necessary is that the offence brings dishonour to the profession generally.255 Canon of Ethics II (d)256 Canon of Ethics IV (g)257 Ibid, Nunez – Tesheira, pp 196 - 197258 Re Hill (1868) LR 3 QB 543259 (1845) 8 QB 129



In Particular

(i) Offences involving Fraud/Dishonesty

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.260 Such offences include bribery, forgery, making false affidavits, embezzlement, obtaining money by threats, bribery, frauds and conspiracy to pervert the course of justice.261

(ii) Offences Involving Immoral Conduct

This is a second class of cases in respect of which disciplinary sanctions may be imposed against an attorney. Examples of such offences include knowingly permitting premises owned by the attorney to be used as a brothel, acts of indecent assault and using threatening or abusive language intended to provoke a breach of the peace.”262

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. The disciplinary jurisdictions of these bodies are both punitive and compensatory263.

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. Take for instance Lord Esher’s point of view in Re Grey264:

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. That power of the court is quite distinct from any legal rights or remedies of the parties and cannot therefore, be affected by anything which affects the strict legal rights of the parties.

With the exceptions of The Bahamas, Jamaica and to a limited extent Trinidad and Tobago and St. Lucia, the court exercises a punitive jurisdiction over all lawyers. This means they can fine and suspend lawyers as well as strike lawyers of the Roll. The reason is in the Caribbean, all attorneys are admitted to practice by the court.

260 Re Weare [1893] 2 QB 439261 Re Blake (1860) E & E 34; Stephens v. Hill (1842) 10 M & w 28; Re Sinanan (1964) 7 WIR 93262 Ibid, Nunez – Tesheira, p 197263 Myers v. Elman [1940] 1 AC 282 at pp 318 - 319 HL264 [1982] 2 QBD 440 CA



Extent and Ambit of the Court’s Inherent Disciplinary Jurisdiction

The court’s power to discipline an attorney, 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 Court265. In this case, two solicitors were called before the court to show cause why they should not be struck off the Roll of Court. The National Insurance Board (NIB) was a client of the firm of which the two attorneys were partners. NIB had entrusted three million dollars to the firm. Subsequently a case of wrongful conversion266 was made against the two solicitors.

Deyalsingh J found that he had the right and duty as a judge of the High Court, to exercise the court’s inherent jurisdiction to discipline the two solicitors. His action was in response to the objective of the legal representatives from the Disciplinary Committee of the Law Society. Deyalsingh noted that

The court’s inherent jurisdiction in respect of solicitors cannot be disputed. 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.267

Trinidad and Tobago subsequently codified this punitive jurisdiction of the court in s. 42 of the Legal Profession Act 21/1986. The Legal Profession Act of other territories have also inserted an equivalent provision, they are Barbados, Antigua & Barbuda, Jamaica, St. Lucia and Guyana.

However Karen Nunez – Tesheira writes that regardless of the court’s inherent jurisdiction “ … the proper course for the court to adopt, except in the most urgent and exceptional cases, 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.”268

As a matter of fact s. 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, he may make or cause the Registrar to make an application to the Committee in respect of the attorney – at – law.

Antigua & Barbuda, Barbados, Trinidad and Tobago and St. Lucia all have similar provisions in their respective Legal Profession Acts.

265 HCA No. 2/1985 Trinidad & Tobago (unreported)266 Wrongful conversion is “A tort, committed by a person who deals with chattels not belonging to him in a manner inconsistent with rights of the owner” – Osborn’s Concise Law Dictionary267 HCA No. 2/1985 Trinidad & Tobago (unreported) p. 24268 Ibid, Nunez – Tesheira, p 207



Alternatively, the court could in cases where there is evidence of criminal wrongdoing, report the matter to the office of the Director of Public Prosecution (DPP)269.

The Exercise of the Court’s Punitive Jurisdiction in Jamaica

“Barristers

Prior to 1960, the Judges of the Supreme Court, exercised exclusive punitive jurisdiction over barristers. However in 1960, The Bar Regulations Law, Cap. 120 was enacted. This law established a Disciplinary Committee of the Bar Association comprising inter alia of the Attorney General as an ex officio270 member, and six barristers duly appointed by the Governor on the recommendation of the Bar Association.271 The Committee was given full punitive powers, including the power to fine, reprimand, suspend and to debar a barrister – at – law from practice.272

Solicitors

Pursuant to the Solicitors Law Cap. 363, a Solicitors Disciplinary Committee was established in 1941. In accordance with s. 35(2) on the hearing of an application, the Committee was given the power to inter alia remove from, or strike off the Roll, the name of the solicitor to whom the application relates and to suspend the solicitor from practice.

Current Position

In 1972, the Legal Profession Act was enacted. 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.273 The Council was charged with the general duty to uphold the standards of professional conduct of attorney – at – law and in particular, was given the full punitive powers as previously enjoyed by the respective Solicitors and Barristers Disciplinary Committees.274

Right of Appeal

Pursuant to s. 16 of the Legal Profession Act, an attorney has a right to appeal to the Court of Appeal against any order made by the Committee. The Court of Appeal:

269 In the Matter of Jeffrey L Toppin, Attorney – at – law and In the Matter of the Legal Profession Act Cap 370A. Judgement dated December 2, 1987. No number assigned to the proceedings (Barbados)270 By virtue of his office271 Section 5 of the Bar Regulations Law Cap. 120272 Section 6 of the Bar Regulations Law Cap. 120273 Section 11 Legal Profession Act 1971274 Section 12(4) Legal Profession Act 1971



(i) may dismiss the appeal and confirm the order; or

(ii) may allow the appeal and set aside the order; or

(iii) may vary the order; or

(iv) may allow the appeal and direct that the application be re-heard by the Committee.

Where it makes an order for the rehearing of an application, s. 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.

Where the Court of Appeal confirms the order whether with or without variation, the order takes effect from the date of the order made by the Court of Appeal confirming it.275”276

Ambit of Punitive Jurisdiction – Is it Extra – Territorial?

The punitive jurisdiction of the court extends to misconduct committed extra – territorially. 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.

The authority confirming the courts extra – territorial jurisdiction is McCalla v. The Disciplinary Committee of the General Legal Council277. The facts of McCalla are as follows. McCalla was admitted to practice in Jamaica in 1962. He then moved to Canada to live and work between 1977 to 1985. In Canada he was admitted to practice by the Ontario Bar. In the meantime, his name was still on the Roll in Jamaica. He returned in March 1985 and resumed practice. The General Legal Council then discovered that McCalla had been struck from the Roll in Canada because:

(i) he published as his, the work of other persons without their permission; and

(ii) he lied on his application for employment with the Federal Government. He held himself out as a Q.C. and former Deputy Minister of Justice of Jamaica.

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, disciplinary proceedings against McCalla were commenced by the General Legal Council.

275 Section 17(2) Legal Profession Act 1971276 Ibid, Nunez – Tesheira, pp 214 - 215277 [1993] 49 WIR 213



The purpose of the proceedings, which were initiated by the Chairman, was to have McCall struck off the Roll of the Court of Jamaica.

At the Court of Appeal, 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. 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.278

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. This sometimes means that the attorney pays the costs of the other side. In other cases the attorney can be ordered to pay the costs of both parties.

This compensatory jurisdiction is exercised exclusively by the court. But it is only exercised in restricted circumstances. 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.

However, although the court generally uses this disciplinary jurisdiction in a compensatory capacity, there is also a punitive element. This is because the solicitor will have to pay a bill that would ordinarily be paid by one of the parties to the litigation. As the solicitor will want to avoid this expense, as well as the adverse publicity, the ability of the court to order costs also acts as a deterrent.

It should be noted that costs can be ordered against as attorney even though he is no longer on record279.

Negligence/Default – What Conduct is Sufficient?

Where the attorney’s conduct is a serious dereliction of duty that causes extra costs to be incurred, the compensatory jurisdiction of the court will be invoked.

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. Therefore gross negligence or gross neglect will not invoke the courts compensatory jurisdiction.

278 Ibid, at p 235279 Brendan v. Spiro [1937] 2 All ER 496



It should be noted though, that the rules in England have changed.280 Now, even though a solicitor has not incurred extra costs because of a serious dereliction of duty or serious misconduct, he can still be asked to pay wasted costs personally. Therefore a solicitor can incur the court’s compensatory jurisdiction, if he has unreasonably or improperly incurred extra costs or has caused extra costs by his incompetence. The new rule has already been applied in the case of Sinclair Jones v. Kay281.

Professional Discipline: Part III – The General Legal Council

Constitution and Membership

The General Legal Council was constituted under the Legal Profession Act 1971. Under s. 11 the Disciplinary Committee consists of a minimum of 15 persons. The General Legal Council appoints them. Under the Act282, members of the disciplinary committee can be:

“i. members or former members of the Council;

ii. current or former holders of high judicial office;

iii. attorneys who were members of a former disciplinary body; and

iv. attorneys who have been in practice for not less than ten years.”283

Under r. 2 of the Third Schedule of the Act, the Council will appoint one of the members of the Committee as Chairman. 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.

Each committee is required to appoint its’ own Chairman, they also need a quorum of three members before they are able to act.

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. It is as follows:

1. A formal application is made by the complainant to the Disciplinary Committee in the prescribed form.

280 Since April 1986, R.S.C.O. 62 r. 8 was replaced with R.S.C.O. 62 r. 11.281 [1988] 2 All ER 611282 See also the Third Schedule made under s. 11 of the Legal Profession Act 1971283 Ibid, Nunez – Tesheira, pp 222 – 223



The applicant should set out the facts by affidavit (s). This is usually done by a client, but may also be done by an aggrieved person.

2. The application should be submitted to the Secretary of the General Legal Council284.

3. The Secretary will send the application to the Disciplinary Committee.

4. Apart from setting out the grounds for complaint, the application also calls upon the attorney to answer the allegations set out in the affidavit.

The complaint will be referred to the DPP if the complaint is of a criminal nature.

5. The Disciplinary Committee carries out investigations into the allegation.

At this stage the Disciplinary Committee may require further documentary proof relating to the allegations.

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. The Disciplinary Committee will notify the applicant and the attorney of this decision in writing.

6. However if a prima facie case is made out the Disciplinary Committee will fix a date for the hearing of the application. The Marshal of the Court285 will serve the Notice of the hearing and copy of the affidavit to the attorney.

The Notice takes a prescribed form. It includes a request for a list of documents including affidavits on which the attorney will rely in answer to the allegations.

7. 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.

Hearing

Applications are heard in private.

284 The Secretary is appointed by the Committee and usually and is usually not an attorney-at-law285 “In the Queen’s Bench Division of the High Court, a marshal is an officer who attends each judge on circuit in a personal capacity. The Marshal of the Admiralty Court is entrusted with execution of warrants and order of the court” – Osborn’s Concise Law Dictionary



The hearing is conducted in conformity with the rules of evidence of a normal court hearing. The Disciplinary Committee may act in whole or in part upon the evidence given by the affidavit. If it is required the Disciplinary Committee may summon deponents286 to give oral evidence.

Standards of Proof

The standard of proof required goes beyond a balance of probabilities. Therefore the standard of proof is high. This is not surprising since allegations of misconduct involve elements of deceit or moral turpitude.

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, between 1992 – 2000, the number of complaints made to the General Legal Council averaged 240 per year. For the period 1995 – 2000, two attorneys have been suspended, seven removed from the Roll, one reprimanded and twenty-four fined”.287

Karen Nunez – Tesheira writes that generalisations should be avoided. But that the cynicism that the public feels towards legal professional discipline, in the English – speaking Caribbean, is well grounded. People feel that self-regulation is tantamount to trying the Devil in Hell.288

RoleToday law is very much a business, than it is the pursuit of justice. But the traditional role of lawyers is to represent his client’s best interests to the court.

This said, it is important to remember that lawyers are officers of the court. Their primary allegiance is therefore not owed to their client, but to the bench.

The Role and Duties of Advocate Attorneys

Introduction

In the Caribbean the roles and duties of attorneys, whether as prosecution or defence counsel are set out in the Code/Canon of Ethics of the territories. The Codes/Canons of Ethics are however silent with respect to confessions of guilt. Because of this the English – speaking Caribbean territories have adopted The Code of Conduct for the Bar of England and Wales 1990, which has specific provisions on this score.

286 “A person who makes a written statement or deposition” – Osborn’s Concise Law Dictionary287 Ibid, Nunez – Tesheira, p 229288 Ibid, Nunez – Tesheira, p 228 - 230



Also the role and duties of attorneys overlaps with professional misconduct. The Code/Canons of Ethics outline these duties, the breach of which constitutes professional misconduct. Here we look at the role and duties of advocate attorneys in relation to the conduct of court proceedings.

General Duties of Prosecution and Defence Counsel

The duties of prosecution counsel are wider in scope than that of defence counsel. As officers of the court, both have an overriding duty to the court. Defence counsel must be zealous in the defence of his client and he must try to obtain the best remedy, which is legally available to him.289 The role of the prosecution is to seek justice, which is a broader obligation. In criminal cases the prosecution must use every legitimate means to bring about a just conclusion290.

Duty to Court in General

Whether prosecution or defence, an advocate attorney shall maintain a respectful attitude to the court in the discharge of his functions and responsibilities. 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. In the Bahamas, consistent rude, disruptive and provocative behaviour can invoke discipline, even though it has not punished as contempt.291 Consequently an attorney:

(i) shall not make scandalous statements or statements which are solely intended to insult or intimidate witnesses or other persons;

(ii) shall as an officer of the court and in the administration of justice be punctual when attending court. He should also be concise and direct in trial and in the disposition of cases. He should inform the courts of the estimated length of proceedings before the court when asked by the court. He should also inform the court of any changes that might affect the estimated length of proceedings.292

(iii) is required to reveal authorities or documents which are disadvantageous to his client, if he is required to make them available by the law or professional standards. Also when relying on authorities in support of his cases he is required to ensure that the decision has not been overruled.293

Duty to the Court in Particular

(i) Judges289 Canon of Ethics, Canon IV290 Canon of Ethics, Canon III (h)291 Code of Professional Conduct Rule III, Commentary 12292 Canon of Ethics, Canon V (q)293 Rondel v. Worsley [1969] 1 AC 191 at p. 227 also Young v. Morales (1995) 50 WIR



Counsel should never give, lend or promise anything of value to the judge(s) when conducting proceedings before him. He should not attempt to privately influence him directly or indirectly, to act in his or his client’s favour.294 Also an attorney must not wilfully make false accusations against a judge or other judicial officer.295

(ii) Jurors

“With respect to jurors, an attorney shall not:

(a) give lend or promise anything of value to a juror where there is a matter pending in which he is engaged;296

(b) make any attempts to curry favour with juries by fawning, flattery or pretended concern for their personal comfort;

(c) Communicate with a juror as to the merits of such proceedings, 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.297”298

(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. He should not advise witnesses to make themselves unavailable to the court, for instance by leaving the court’s jurisdiction.299

Attorneys must not pay witnesses or offer to pay witnesses for giving evidence. 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. This also applies to expert witnesses300, but he should only be paid a reasonable fee for his professional services.301

294 Canon of Ethics, Canon IV r (e)295 Canon of Ethics, Canon V (c)296 Canon of Ethics, Canon V (b)297 Canon of Ethics, Canon V (i)298 Nunez – Tesheira, K. (2001) The Legal Profession in the English – Speaking Caribbean. Jamaica: The Caribbean Law Publishing Company, p 237299 Canon of Ethics, Canon V (k)300 “ A person with special skill, technical knowledge or professional qualification whose opinion on any matter within his cognisance is admitted in evidence, contrary to the general rule that mere opinions are irrelevant; e.g. a doctor or surgeon, a handwriting expert, a foreign lawyer. It is for the court to decide whether the witness is so qualified as to be considered an expert. In any case to be tried without a jury, the court may appoint an independent expert, called the ‘court expert’, to inquire and report,” – Osborn’s Concise Law Dictionary301 Canon of Ethics, Canon IV (l)



Attorneys must not abuse, harass or intimidate witnesses.302 An attorney must not appear as a witness for his client except in formal matters where his appearance is essential to the ends of justice.303 Therefore if it is necessary for an attorney to be a witness in a formal matter, the conduct of the case should be entrusted to another attorney. Also, he is not to act as advocate in any appeal to the decision of the proceedings in which he was an attorney.304

(iv) Perjured Evidence/Fraud/Illegal Conduct

As an officer of the court an attorney must never knowingly mislead the court. He should also avoid implying things about the other party or witnesses when he has insufficient information to that effect.

An attorney:

(a) must not knowingly use perjured or false evidence, he must not help create or use evidence which he knows is untrue;305

(b) must not knowingly make a false statement of law or fact;

(c) must not knowingly present to a judge, court or other tribunal that a particular state of facts exists. 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;306 and

(d) must not help or advise his client or a witness in fraudulent or illegal conduct.

Duties of Defence Counsel

“Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful which he thinks will help his client’s case.”307 However as an officer of the court, his overriding duty is to the court in the administration of justice.308

It is the duty of defence counsel to seek 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. Counsel also must not

302 Canon of Ethics, Canon V (p)303 Canon of Ethics, Canon V (p)304 R v. Harris Hoo Shue [1936 – 40] 3 JLR 108305 Canon of Ethics, Canon V (m)306 Canon of Ethics, Canon V (n)307 Ibid, Nunez – Tesheira, p 238308 Rondel v. Worsley [1967] 3 All ER at p 998



declare personal knowledge about any facts in the matter being investigated, nor is he to declare his belief in the justice of his cause.309

(i) Defending a Client Accused of a Crime

“When defending a client accused of a crime, irrespective of any belief or opinions which he may have formed as to the guilt or innocence of his client, 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.310 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.”311

What happens if a client confesses his guilt to his attorney? Attorneys have a duty to their clients to maintain client/attorney confidentiality. On the other hand every attorney is an officer of the court with an overriding duty to the court. Therefore he must not knowingly mislead the court and he must not lie to the court.

In the situation where a client does confess to a crime an attorney must consider two facts;

(a) whether the accused’s confession of guilt is clear and unequivocal; and

(b) the stage at which the confession is made.

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.312 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. However he must explain all the possible consequences. In particular, he must explain that restrictions will be placed on the conduct of the defence (these will be considered below).313

Where the confession is made during proceedings

If an attorney wants to withdraw in criminal cases, he must seek the court’s leave. Whether leave is granted is in the court’s discretion. However if 309 Canon of Ethics, Canon V (j)310 Canon of Ethics, Canon III (g)311 Ibid, Nunez – Tesheira, pp 238 – 239 312 The Code of Conduct for the Bar of England and Wales 1990 para 12.5313 Ibid



proceedings have commenced and an attorney’s withdrawal would compromise his client’s position, the attorney should continue to act. However he must act within the strict limitations, which are imposed by his client’s confession (we will look at these below).314

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. He should therefore seek to avoid direct examination of his client; he shall not argue to the jury the accused’s known false version of the facts; he may not recite or rely upon the client’s false testimony in his arguments. In addition he cannot make a plea in mitigation.315

In particular, defence counsel may not protest his client’s innocence nor set up an affirmative case consistent with the client’s confession by e.g. 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.

Although defence counsel is severely restricted in the conduct of the accused client’s defence in cases where the client has confessed his guilt, the attorney may nevertheless present a technical defence by, inter alia, objecting to the competency of the court, the form of the indictment and the admissibility or sufficiency of the evidence.316 In attacking the evidence for the prosecution, he is entitled to test the evidence of each individual witness for the prosecution by, inter alia, 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, but he should go no further than that.317

(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.

(iii) Withdrawing from case

Counsel can refuse to act for a client who has confessed guilt but is still determined to plead not guilty. However the Canon of Ethics, 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. They are:314 The Code of Conduct for the Bar of England and Wales 1990 para. 13.3 and R v. Lyons [1978] 68 Cr App 104315 The Code of Conduct for the Bar of England and Wales 1990 para. 13.3316 The Code of Conduct for the Bar of England and Wales 1990 para. 13.4317 The Code of Conduct for the Bar of England and Wales 1990 para. 13.5



(a) where the attorney cannot conscientiously represent a claim or defence that the client insists upon;

(b) where the client wants to pursue an illegal path or deceive the court;

(c) where a client has committed fraud during proceedings but will not rectify or cannot rectify the matter when asked to by counsel;

(d) where to continue acting is tantamount violating a law or disciplinary rule;

(e) “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”318; and

(f) where counsel cannot carry out his services effectively for any other good and compelling reason.

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.319 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.320 Therefore prosecution counsel must:

(a) make promptly available to the defence all the witnesses and relevant statements; and

318 Canon of Ethics, Canon IV (v)319 Code of Professional Conduct for the Bar of England and Wale para 11.11320 Ibid



(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.321

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 continue322.”323

Prosecution must not withhold evidence that proves the guilt or innocence of the accused. Also in the settling of indictments324 prosecuting counsel should act promptly. He should also refrain from overloading it with too may defences or too many counts.325

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

321 See on this the Code of Professional Conduct for the Bar of England and Wales para 11. 4 (d)322 Abbot v. Refuge Assurance Ltd [1961] 1 QB 433 at 451323 Ibid, Nunez – Tesheira, p 242 324 “A formal document setting out the charges against the accused. An indictment consists of three parts: (1) the introduction indicating the venue and defendant; (2) the statement of offene; and (3) particulars of the offence325 See on this the Code of Professional Conduct for the Bar of England and Wales para 11. 4 (d)



6. Legal Aid

Legal Aid in Jamaica

The United Kingdom experience has influenced the development of legal aid in Jamaica.

Legal Aid in Criminal CasesProvisions were made for legal aid in criminal cases as early as 1872326. 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 lock-up, 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 courts327. 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.

326 Criminal Law, Law 24 of 1872327 Under s. 142 Suits in forma pauperis



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.

7. The Ombudsman – role and functions.

The Office of the Ombudsman

RoleThe 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 way328:

“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.”329

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)330.

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.”331 He may conduct investigations in two sets of situations:

1. when an individual or a body of persons complain; or328 Owen P. ‘Current Ombudsman issues – an international perspective’, seminar papers, The Role of the Ombudsman in the Commonwealth Caribbean, 1989, Barbados: ISER, UWI, p 3329 Op cit, Antoine, p 305330 Act No. 23 of 1978331 op cit Antoine, p 307



2. 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.

The Ombudsman’s investigation should be guided by public interest. In Jamaica he can investigate matters relating to the police, judicial proceedings, personal and other situations where there is redress for a breach of fundamental rights332. He may deny jurisdiction on grounds of triviality (deminimis rule), frivolity, bad faith or remoteness of interest.

The Ombudsman’s principal function is to investigate administrative decisions or recommendations of government departments or authorities. This includes advice given to ministers. The matters to be investigated include injustice and maladministration.

Under s. 12(1) – (5) & s. 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, provided that the Ombudsman is satisfied that it is not reasonable for the complainant to take or have taken such proceedings.

The Ombudsman can also investigate matters taken to a Service Commission about appointments, removals, promotions or disciplinary controls etc in regards to any person. The Jamaican Ombudsman is not prevented from investigating a matter that the complainant could apply to court to resolve under s. 25 of the Constitution333.

In Jamaica the Ombudsman is allowed to comment on legislation334 and there appears to be no limitation as to investigating policy.

In other territories Ombudsmen are not allowed to scrutinise investigating policy. If the complainant would have a legal remedy, the Ombudsman does not have jurisdiction in those cases. However, if there are ‘special reasons’, he may exercise a retained discretion to investigate the case.

332 Jamaica Ombudsman Act (1978) s. 12(1) – (5)333 This section relates to redress for the contravention of fundamental rights and freedoms334 s. 21(5) (b)



8. Law Reform and Law Revision

Law reform and law revision in the Commonwealth Caribbean has to be viewed from the constitutional/colonial context. At least two countries in the region are distancing themselves from their colonial past (Jamaica and Barbados). There have been cries from commentators ad politicians for review of the constitutions.

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. “At the end of the day, however, the issue is likely to be dealt with as a political independence that the region as a whole enjoys.”335

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Students are instructed to read Chapter Thirteen of Commonwealth Caribbean Public Law by Professor Albert Fiadjoe336.

335 Albert Fiadjoe, Commonwealth Caribbean Public Law, p 293336 There are copies in the library


Unit One - Module One - 04 - 05 (1)

Documents

Transcript of Unit One - Module One - 04 - 05 (1)