Real time justice

The system at the lawcourts has much in common with the Kappara roundabout. There are long queues from every direction and the only way to get around is to forget all the rules and muddle through. Will the measures proposed in the recently-released White Paper change this? Vanessa Macdonald spoke to Chief Justice Vincent De Gaetano about the administration of justice.

One of the basic principles of the judiciary is that it is autonomous. What if there are fundamentally important aspects of the White Paper with which you do not agree?

There is a saying in Maltese: "Let's not bandage our head before we break it". The White Paper is a consultation document and I, like others interested, will be making my submissions to the minister both in an individual capacity and, if necessary, on behalf of the judiciary as a whole.

I am glad that the White Paper takes up some of the suggestions I had made in the address on the occasion of the opening of the forensic year in October 2003 - better late than never - like the need for shorter judgments (which does not mean, as would seem to be suggested in parts of the document, judgments without giving reasons or judgments of an inferior quality), filtering appeals to weed out the manifestly unfounded, setting up specialised sections of the courts and in general cutting down on unnecessary or unjustified delay.

Some delay in some cases is inevitable - it is only when the delay is "unnecessary" and "unjustified" that it is to be censured.

Of course there are some things in the White Paper with which I do not agree and I will be giving my reasons to the minister and to the parliamentary secretary. There are also others things which I consider to be very important to cut down on the time between filing of a suit and final determination, which are not addressed in the document, like efficient support staff and other ancillary services (accessibility to laws and regulations, specialised books etc). But as the parliamentary secretary said - I think it was in The Times last week - one must start from somewhere.

What do you believe to be the main cause of court delays?

I would rather speak of main "causes", in the plural. One of them is the accumulated backlog. This backlog is due principally to the fact that for years no one - executive, legislature, judiciary - did anything to apply the concept of "efficiency" to the administration of justice. It was only in the last 15 years or so that the matter began to be considered but initially not in a very scientific way and with little input from the judiciary.

The result was some amendments to the Code of Civil Procedure (and even some in the field of Criminal Procedure) which not only proved to be unworkable but which had the opposite effect to those desired and actually increased the backlog - sometimes I think they were drafted by someone living in the hills of Patagonia rather then in Malta!

Another main cause is that in more recent years the volume of work has increased both quantitatively and qualitatively - in the sense that more complicated cases, particularly in the commercial and public law fields , are coming before the courts.

You must remember also that judges and magistrates do not only deal with cases that are assigned to them. The statistics, for instance, do not show the countless applications for warrants, bail, release of property and 101 other matters which require not a judgment but an interlocutory or a definitive decree. Some of these decrees also require a hearing. To give you just one example, a separation case in the Family Court will invariably spawn dozens of applications, some of them on very delicate matters, which require the undivided attention of the judge.

The magistrates in particular have had their work almost doubled since the introduction last year of the amendments in the Criminal Code requiring their intervention in the issue of search and arrest warrants by the police.

What about the large number of cases that repeatedly get put off for another hearing?

This is a problem tied to the volume of work that each judge or magistrate has. Say you were dealing with five or six cases on the list for a particular day. You could prepare these carefully the day before and if there is anything missing in the records, you could look it up or get someone else to do this. You could also possibly deliver judgment in most of them on that same day if you have also heard the evidence. But when you have 30 cases on the day's list, the whole thing becomes unmanageable. If you get the slightest excuse to put a case off - so that you can concentrate on the others at hand - then the temptation to do so is irresistible.

The Commission for the Administration of Justice in its fourth report recommended the possibility of a temporary increase in the number of judges, simply to get through the backlog.

My suggestion two years ago was to use retired judges, keeping them on as "associate judges", as the Americans call them. They would be kept on for a number of years, giving them duties in areas where there is a lot of pressure or backlog. Associate judges could also head inquiries, if necessary, to avoid delaying an active judge's caseload.

Alvaro Gil-Robles, the Council of Europe's Commissioner for Human Rights, in his report of February 2004 had also suggested an increase in the number of judges and magistrates.

But then you are going to increase the expenditure of the lawcourts and I am perfectly aware that that is a problem. Justice is always expensive. So that is what it boils down to.

The White Paper implies that the judicial field, which includes lawyers, members of the judiciary and court officials, are to blame as they did not observe the code "scrupulously" in the past.

As I have said, no one can be expected to apply unworkable provisions. That is why genuine consultation is so important. Even the White Paper contains a couple of proposals that I believe to be unworkable. And demotivating judges and magistrates is certainly not conducive to efficiency - that is, I hope, something that we should have learnt from the recent past. I am not at all worried, and nor should anyone be, about the odd judge or magistrate who is less productive than the average, provided he is doing his level best.

Present structures provide for corrective measures to be taken with the least fuss. I would be worried only if a judge or magistrate were not doing his best either deliberately or because he is wasting his energy elsewhere. So I hope we will have no more mention of this "naming and shaming" nonsense.

Is it too simplistic to say that cases should be heard within a number of years?

Yes, it is too simplistic. It all depends on the nature of the case. In some cases even a 12-month delay from first hearing to judgment by the court of first instance could be deemed to be unreasonable. In another case 10 or more years might not be deemed unreasonable. Suffice it to mention, for instance, a case which cannot be determined in first instance or on appeal before a series of other cases instituted by the parties in relays are first determined.

Incidentally, the code of ethics for members of the judiciary addresses the problem of the reasonable time within which a case is to be decided in one of its first provisions: "Members of the judiciary shall decide cases assigned to them within a reasonable time, according to the means and resources placed at their disposal by the state and to the volume of work assigned to them..."

The British High Commission recently organised a visit by a British circuit judge to assess ex tempore judgments, which are given there and then, rather than as lengthy written judgments afterwards. Are you receptive to the idea, now proposed in the White Paper?

An ex tempore judgment means it is pronounced immediately after the hearing of the case. It does not mean, as some believe, a judgment without reasons, or giving reasons only if the parties declare their intention to appeal; it means that instead of putting off the case to another day to deliver a written judgment (in England it is called a "reserved" judgment, which, today, in that jurisdiction, is the exception rather than the rule), the judge or magistrate "pronounces" his judgment there and then, giving his reasons, even on points of law if necessary.

In England some ex tempore judgments may take half an hour to be pronounced (in other words the judge "speaks" for half an hour). Incidentally the idea to try and adapt this system of delivering judgments to our courts was hatched by the Judicial Studies Committee and I am glad to note that the minister and the parliamentary secretary are receptive to this proposal.

Regarding the Judicial Studies Committee (JSC) I must correct something I said in the opening address at the seminar conducted by Judge Rose in February. I had said that in this year's estimates no money was allocated to the JSC. I was recently informed by the permanent secretary at the Ministry of Justice that Lm5,000 have in fact been allocated. Unfortunately they had been "hidden" under some item totally unconnected with the JSC, with the result that no one in the ministry was aware that the money was there.

The lack of back office staff ranging from deputy registrars to judicial assistants has been a long-standing problem. Is the problem finding the money for their wages or finding the right people?

I am not sure I can give you a proper answer to that question. What I know for certain is that the procedure to recruit staff, involving the Management and Personnel Office, the Public Service Commission and I don't know which other department or ministry, takes ages. And some procedures are quite bizarre. For instance, some months ago a judge was aware that a member of his staff was to retire on a particular date. He asked for an early replacement so that the person retiring would have time to "hand over" to the new member of his staff. He was told by the court administration that the procedure for recruitment could not be initiated before the man actually retired. Now this judge has, for the moment, to make do with a new person, taken from the staff of other members of the judiciary, every other day!

An academy was set up a few years ago to train court staff. Has it helped?

If it did help it does not show where it matters most. If a newly recruited person is assigned to a member of the judiciary it falls very much upon that judge or magistrate to have to teach him or her sometimes very basic stuff; or the person just learns by trial and error as he goes along - very much like muddling through your roundabout!

You have argued for more control over court experts, both with regard to their appointment and duties, and in favour of their prompt payment.

The problem as I see it is in the criminal field not in the civil field; in the latter the experts' fees are ultimately borne by the losing party. In the criminal field magistrates must ensure that experts are appointed only when really necessary. I have already made this quite clear to them and in any case the present legal framework, which provides also for rules of court which can be made by the Rule Making Board set up under the Criminal Code, should be sufficient to deal with this problem.

You spoke at the start of the last forensic year about proposals to give the director general of the courts more power, arguing that this could affect your independence. You also said this proposal had constitutional implications. Has there been any progress?

The parliamentary secretary and I are to meet in order to go over the legal notice in question to try and find a modus vivendi. Both of us are anxious to settle this matter as quickly as possible.

The autonomy of the judiciary is essential but how far does administration impinge on your autonomy? Hospitals do not need to be run by doctors, they require managers. Should courts be run by judges?

The analogy with hospitals is valid only up to a certain extent. A hospital can decide, on instructions from the ministry, that a particular operation should not be performed, or that certain types of operations should not be performed or should be postponed. But the director general should never be in a position to decide, albeit indirectly, that a particular case is not heard or that certain types of cases will not be heard, by, for instance, not assigning a court room or the necessary staff.

I agree with you that the court administration needs good managers, just as the administration of justice needs goods judges. In many Commonwealth countries the court administration is answerable to the Supreme Court, precisely to ensure that there is no unwarranted interference by the executive.

We have heard so much about the Master system. It is more "on again, off again" than Julie and Ludwig... What is happening?

The "Master" system is a very good example of why you cannot graft what is basically a good system onto an old system struggling with a backlog of hundreds of cases. First of all the system was not backed by any provision of the Code of Procedure or rules of court; there were draft provisions and draft rules, but these were never implemented. It was really an experiment. Soon after I became Chief Justice, the judges sitting in the civil courts asked me to put an end to the experiment so that now the work which was being done by the Master is done by every judge with respect to every case assigned to him.

The more recent amendments (to the Code of Procedure) which came into effect last year provide for pre-trial hearings and trial hearings but both are conducted by the judge to whom the case is assigned from the very beginning. In the absence of rules of court, an informal agreement has been reached between the judiciary and the Chamber of Advocates as to how the procedure is to be regulated. In the coming months the Rule Making Board set up under the Code of Organisation and Civil Procedure will be drawing up rules of court to deal in more detail with both sets of hearings.

I was in court recently and the same lawyer was being summoned in three different halls. How can the system work without cases being heard at scheduled times?

You are quite right. This is another matter that also requires attention. The Court of Appeal, many judges and a few magistrates schedule their cases at 15-minute or half-hour intervals or more. I have recently introduced the system also in the Court of Criminal Appeal when I sit in that court in Gozo. It does away with crowded courtrooms and crowded corridors and allows lawyers a measure of "safe" mobility from one courtroom to another. On the other hand, it is more difficult to introduce it in the case of district sittings.

Many lawyers nowadays work in "teams", which enables one lawyer, generally the more junior lawyer, to appear before a court to handle the less difficult cases, while a more senior lawyer appears in the more difficult ones, for instance in the Court of Appeal.

One proposal to speed things up was to have sittings in the afternoons. Is this feasible?

The Court of Criminal Appeal in its superior jurisdiction, that is when we hear appeals from decisions of the Criminal Court or from trials by jury, always sits in the afternoon. Afternoon sittings may help to a limited extent in case management in certain courts but I cannot see how it can speed things up generally.

Most lawyers in the afternoons have to appear before court appointed experts or before the Small Claims Tribunal or before Commissioners for Justice. Unless one is contemplating having only one case on the list and hearing it on consecutive days (like in a trial by jury), having sittings in the morning and afternoon does not make much sense.

The judge or magistrate needs the time to study the case and write the judgment and his staff also need the time to attend to all the paperwork which a sitting invariably entails.

Is the Commission for the Administration of Justice set-up any help in dealing with aggrieved members of the public?

I see no reason why it should not be. The problem is that the commission receives many "complaints" which are in fact outside its terms of reference. I do not envy the task of the secretary of the commission who often has to write and explain this to the complainant.

Do you agree with former Justice Minister Austin Gatt that judges should be specialised in particular sectors?

Specialisation ensures that the judge is so conversant with a particular area that he can immediately focus on the essential issues of a case and put aside all the dead wood that the parties, or their lawyers, may put in his way. In a sense we have already started this form of specialisation.

Apart from the Criminal Court - the judge sitting there deals only with criminal cases - there is the Family Court. One magistrate has been assigned to the so called "Criminal" Family Court while another magistrate has been assigned the delicate task of hearing all cases involving child abuse. The Code of Procedure provides for the possibility of setting up other sections of the Civil Court to deal with specialised areas or cases, for example commercial cases, or shipping cases, or administrative cases. There are, however, two problems. In the Court of Appeal you cannot keep changing the composition according to the specialised area of law with which a particular appeal is concerned.

More importantly, there are not enough judges that I can assign in a meaningful way to a particular section. If I were to do that with the present backlog and with the present workload of each judge, the system would simply collapse.

You feel quite strongly that frivolous appeals should be curbed. How can you do this without reducing people's rights?

No one has a right to waste the court's time and there is no right to appeal when there are no valid grounds for appeal. By curbing frivolous appeals one is not reducing anyone's rights. You cannot reduce a right which does not exist.

Justice does not end with a decision. Do you have enough power to enforce decisions and is it something that should be outsourced?

If you have obtained a judgment in your favour and you need to implement it by coercive means you need court authorisation. The actual execution can be left in the hands of third parties.

Let us say that someone obstructs, in a manner not amounting to a criminal offence, the marshall in the execution of, say, a garnishee order or a warrant of seizure. The current procedure is that the court orders the registrar to commence a whole new lawsuit against the person obstructing. You can imagine the consequences of this approach, with cases going into a black hole. So I think that the whole law dealing with contempt of court in this area should be revisited so that the "guilty" party can be dealt with in real time.

A number of interesting points have emerged from this interview. Should the Chief Justice be more accessible to the press?

Absolutely not. My business and that of judges and magistrates is to administer justice not to talk to the press. However, exceptionally, there may be occasions where the Chief Justice should clarify certain things on behalf of the judiciary. Otherwise no one will.

What about the principle of accountability?

The principle of accountability does not mean being accessible to the public or to the press. There are other procedures and structures that deal with accountability.

David Pannick, in his book Judges, says that the English judge is not a public figure and that he acts on the principle adopted by Lord Widgery, Lord Chief Justice 1971-80, that "the best judge is the man who is least known to the readers of the Daily Mail".

Lord Widgery advised that "judges should not court publicity and certainly should not do their work in such a way as to 'catch the eye of the newsman'". I believe that all this applies also to Maltese judges and magistrates, including myself.