EXECUTIVE COUNCIL
CONFIDENTIAL
Title of Report: Court Review
Paper No: 164/13
Date: July 2013
Report of: Director of Central Services
1.0 Purpose
1.1 To allow Executive Council to consider the recommendations of the independent review of the Falkland Islands court system undertaken at our request by HM Courts & Tribunals Service of the Ministry of Justice.
2.0 Recommendations
a) Approval of the recommendations of the independent review of the Falkland Islands court system undertaken by HM Courts & Tribunals Service of the Ministry of Justice, as set out in Appendix 1.
3.0 Summary of Financial Implication
2013/14 Full Year (£) (£) Capital 90,000 £nil Operating Budget 137,000 47,000 Total 227,000 47,000
Financial implications are indicative only and no funding is being sought at present. All projects with a financial implication will require further approval through Executive Council or Standing Finance Committee (depending on the matter) at the point in which a defined policy has been prepared.
4.0 Background
4.1 In June 2013 Executive Council received a report from the Chief Executive recommending the appointment of a Head of Courts and Tribunals Service to progress the implementation of the recent independent review of the Falkland Islands court system (paper 149/13 refers); Members approved the recommendation and recruitment to the post has now begun.
1 4.2 The review report contains a total of 26 recommendations, to be implemented over a timescale of between 6 and 18 months. Again, if these ambitious timescales are to be met, and given it is envisaged the appointment process for the Head of Courts & Tribunals Service will take some months, it is important that work starts as soon as possible on implementation. This paper therefore introduces the recommendations of the review, and following consultation with the Chief Executive, MLA Dick Sawle (portfolio holder), the Senior Magistrate, Attorney General and local law firms, makes recommendations over their implementation and timescales.
5.0 The Recommendations
5.1 The 26 recommendations (of which there are only 25), are set out in full in Appendix 1, along with proposed responses, and comments, costs and revised timescales for their implementation. In general, there is a lot to like about this review and the findings it has identified, so for the most part, it is proposed the recommendations are accepted.
6.0 Financial Implications
6.1 The financial implications associated with the recommendations of this report have been estimated at this stage to be as follows: Ite Section Type of Estimated 2014/15 Cost Cost onwards 2013/14 5 Training & support to the Judiciary Operating £30,000 - 7 Virtual court Operating £10,000 - 11 Part time Usher Operating £11,000 £11,000 12 Internet reference system (licences) Operating £10,000 £10,000 13 Secure electronic filing system Capital £40,000 - 13 Foreign language translations Operating £5,000 £5,000 17 Government trainees Operating £21,000 £21,000 22 Effective court facilities Capital £50,000 - 25 Justice Improvement group Operating £50,000 -
Total £227,000 £47,000
Operating £90,000 - Capital £137,000 £47,000 Total £227,000 £47,000
Financial implications are indicative only and no funding is being sought at present. All projects with a financial implication will require further approval through Executive Council or Standing Finance Committee (depending on the matter) at the point in which a defined policy has been prepared.
6.2 Recommendation 23 regarding a new building would have significant cost implications and therefore will require a further more detail view and separate approval before this can be considered to go ahead.
2 7.0 Legal Implications
7.1 The recommendations taken as a whole, if implemented represent a fundamental shift in the way that the Court will operate in the Falkland Islands. The detail of many of the recommendations will need further thought before any planned changes are brought in. Many of the recommendations if accepted and implemented will require change to existing practice and procedure. Some recommendations will require amendment to legislation. As the detail implementation of the recommendations is taken forward, these issues will have to be addressed as part of that process
8.0 Human Resources Implications
8.1 Whilst it is too early to determine exactly what additional resources will be required if the items which are proposed for acceptance are agreed to, it is likely that some level of addition staffing (be it casual or permanent) will be required in both the short and longer term to deliver the objectives effectively.
3 APPENDIX 1
Role of the Judiciary
Definition Accept / Cost Comment Lead Timeframe Reject Estimate proposed 1 The creation of a framework document between the Accept Staff time The example proposed is not HoCS Within 6 months Governor, Chief Justice and the Executive on a - Within regarded as fit for purpose of arrival of partnership between them in relation to the effective existing for the Falkland Islands and HoCS governance, financing and operation of the Court and budget will need to be developed. Tribunal Service in the Falkland Islands. This should approval also cover, inter alia, roles, responsibilities, independence, provision of infrastructure and resources, relationship with other bodies, accountability to the legislature and Executive, performance, reports, audit and inspection and a review provision.
2 The exploration of alternative models to provide Accept Staff time To be advertised in HoCS Within 6 months additional judicial support, including a list of judges - Within appropriate UK journals and of arrival of who specialise in family and children’s issues who existing within the MOJ system. HoCS could be drawn on as required. budget approval 3 The creation of a code of conduct and disciplinary Accept Staff time HoCS/ Within 6 months procedure for the judiciary which draws on support - Within SM of arrival of and best practice from the UK, other OTs and the existing HoCS CDs. budget approval 4 A code of conduct should also be developed for those Accept Staff time HoCS/ Within 6 months
4 who prosecute and defend in the court. - Within AG/ SM of arrival of existing / Local HoCS budget Law approval Co’s 5 The codifying of the appointment, training and system Accept Some of this already exists, HoCS Within 12 months for JPs and Judges, to include: and other parts (e.g. d) may of arrival a. advice on the appointment process from the £30,000 be a challenge locally, but in Ministry of Justice and on training and (one off) principle agreed. management from the Judicial College. Support should also be provided for the judiciary to network with judges from similar jurisdictions (other OTs, CDs and Commonwealth countries); b. the publication of an agreed appointment process for JPs and the judiciary; c. a mentoring scheme for new JPs; d. performance of the JPs should be monitored with a minimum number of sittings per annum; and e. A budget for judicial training which should lie with the court service, but should be supported by a framework to assist in identifying appropriate training for all members of the judiciary within the Islands.
5 Structures within the Court
Definition Accept / Cost Comment Lead Timeframe Reject Estimate proposed 6 That the Head of Service (see section III) working Accept Staff time HoCS Within 12 months with the Senior Magistrate, draft a contingency plan - Within of arrival. and a business continuity plan for the court service to existing enable them to be able to deal with major events and budget to ensure that day-to-day work is not compromised or approval delayed in the event of a major trial. 7 That the court structure is developed, so that: Accept Staff time Agreed in principle, but it is HoCS Within 36 months a. There is a true summary court utilising the - Within felt that the 18 month of arrival. skills and commitment of local people while existing timeframe proposed is providing an appellate route to the Senior budget unrealistic and that some of Magistrate; approval these areas already exist. b. Different jurisdictions are created within the court structure so as to provide a youth court Suggested the HoCS bring and a family court, with the JPs court forming forward further proposals part of these jurisdictions at first instance; about implementation once c. There can be an increase in specialist civil and in post. commercial court sittings (although we note that civil claims are mainly small claims and Different ‘jurisdictions’ commercial matters are presently dealt with by already exist within the the Supreme Court). We recognise that these Court structure. different jurisdictions may involve the same people sitting in the same venue at different Parallel sittings of summary times of day but specialism, in so far as it is and magistrate’s courts possible, is to be commended; happen now. d. There can be parallel sittings of summary and
6 magistrate’s courts in the meantime using the Community justice specialist current office of the Senior Magistrate; courts would require more e. Building on the strengths of the Islands, sentences and resources. community justice specialist problem solving courts be developed specifically directed at Legislation will be required alcohol abuse, mental health and domestic for the HoCS to make repeat violence. These could tap into the voluntary orders in this way. organisations that appear to be a strength as well as the statutory agencies; The Senior Magistrate is now f. The summary court deals with licensing issues; able to sit off-Islands. g. The Head of Court Services can make uncontested or repeat orders such as Interim Care Orders; h. The Senior Magistrate is able to sit off-Island; i. The exploration of creating a virtual court in specialist fields so that judicial support can be brought in by video link; and j. There is a publicly available list of specialist £10,000 family and civil judges who can be called on to (one off) support the Senior Magistrate if required.
8 That the of roles, responsibilities and titles be Accept Staff time Again, whilst accepted in - - reviewed, including whether: - Within principle. All parties agree a. the Attorney General should continue in the existing there is no need to move to a role of Deputy Coroner as once the post of budget ‘Falkland Islands Judge’ Head of Court Services is established, it might approval title. fit more appropriately with that role; b. once a new court structure is determined, the title of Senior Magistrate be changed (acknowledging the constitutional
7 c. the Senior Magistrate continues to hold appointment as chairman of the Prison Board of Visitors.
Court Administration and processes.
Definition Accept / Cost Comment Lead Timeframe Reject Estimate proposed 9 The appointment of a legal qualified Head of Service. Accept Staff time This recommendation was DCS January 2014 We suggest a title reflective of the role and status of - Within the subject of paper 149/13 the court service within the Island – perhaps Head or existing and is being implemented. Director of the Falkland Islands Courts and Tribunal budget Service. They should be responsible for the provision approval Point (g) to be defined of a courts and tribunals service on the Islands and through proposed other relevant territories. The Head of Service would: framework. a. provide leadership for the administration of the court, monitoring its efficiency, progress and quality; delegating responsibilities to others and provide administrative and legal/judicial support to the Senior Magistrate as a key member of the court’s top team, for the creation/implementation of the operational plan, performance management and information requirements; b. improve organisational performance; recognise achievements and champion success; monitor
8 customer service issues and the resolution of problems; c. be able to recruit, select and develop colleagues; monitoring and enforcing good attendance and high standards of behaviour where necessary; developing and maintaining productive working relationships amongst all colleagues within the court; d. enable the summary court to sit as a true court of first instance, as he/she would be able to advise JPs and undertake appropriate case management and other judicial roles under the direction of the Senior Magistrate; e. be responsible for planning, managing and deliver training for the JPs; f. initially be expected to have experience of advising magistrates within the UK or other similar jurisdiction (for information, someone with the appropriate skill sets in the UK would be paid £40,000-£50,000) although we do not rule out developing local staff to take on such a role once established; g. be line managed for administrative purposes through Falkland Islands Government but would act otherwise on the direction of the Senior Magistrate and be given the same judicial independence as the Senior Magistrate and JPs in order to undertake the advisory and training role. He/she would not be subject to the direction of Falkland Islands Government
9 in any way in connection with their judicial role. Protections would have to be established to ensure that the appointment is made on a partnership basis between the parties and that the postholder cannot be removed for any act undertaken in his or her judicial role without the agreement of the Chief Justice; and h. have a contract timed to provide handover and continuity between changes of Senior Magistrate. In the future we would hope that contract placement would not be necessary. 10 The appointment of a Deputy Head of Reject n/a At this time it is not felt this - - Service/Administrator to assist the Head of Service, post is required. It is the post being: proposed implementation is a. a stepping stone for a local individual to delayed and reviewed again, become legally qualified and ultimately if required, in 12 months undertake the Head of Service role; and time. b. trained to advise the JPs in simple straightforward cases as an unqualified Court Clerk. 11 A part time Usher be appointed to undertake the Accept £11,000 Further consultation is DCS / Within 6 months necessary administrative court tasks supporting the (recurring) required with the AG to HoCS of arrival of Senior Magistrate, Chief Justice and JPs: he/she could determine how this might HoCS also double as a receptionist, for the time being shared work. between the Land Registry and the Court. 12 The procurement of internet based reference Accept £10,000 It is proposed this resource HoCS Within 12 months subscriptions for the judiciary and court staff. (recurring) could be shared with that of arrival of being procured by AG’s HoCS chambers – funding for
10 which has already been approved. Possible licence costs to be considered. 13 With the additional support identified above, the new Accept Staff time In principle agreed – it is HoCS Within 12 months court staff review and revise all court procedures, - Within proposed these resources of arrival of forms and systems and provide guidance to court users existing could be shared beyond the HoCS on how they work, in particular: budget Courts with the AG’s a. Streamlining the process for dealing with the approval Chamber, RFIP, FILS and payment of debt – possibly with debtors Immigrations service. paying creditors directly; b. Transferring the responsibility for the payment The potential for a ‘language and collection of court fees and fines directly line’ type, over the telephone to the Falkland Islands Government; service to support speakers c. Changing and updating Pre Sentence Reports of languages other than to provide shorter and more focused Reports English should be considered which should be capable of being delivered on as an alternative to producing the day rather than in 3 - 6 weeks; translations. d. Developing a new secure electronic filing plan for court business; HoCS to review with those e. Developing a retention schedule so that paper parties and bring forward filing for criminal cases over three years old is proposals. destroyed and civil files over three years old £40,000 are archived off site; (one off) f. Revising all court forms to make them compliant with current legislation and easily understandable; g. Publishing a clear, straightforward guide to court etiquette which is proportionate to a small jurisdiction and distinguishes between behaviour in and out of court;
11 h. Issuing guidance and information translated in a limited range of languages to reflect the range of users before the court both within the Islands’ community and its transient population. Where practicable, such policies should be produced jointly with other administration of justice agencies; and i. Once the post of Head of Services is established, a further review will be needed to identify whether there is administrative work presently being undertaken by the judiciary which could be taken over by the administrative staff, or judicial work of a case management and 'box work' nature that could be taken over by the legal qualified staff.
Improving the legislative framework.
Definition Accept / Cost Comment Lead Timeframe Reject Estimate proposed 14 Effective resources are provided to the Attorney Accept Staff time This work is already in hand. AG - General’s Chambers to ensure that the revision of the - Within Falkland Islands law is completed effectively. existing budget approval 15 The creation and implementation of a plan for Accept Staff time AG implementing the revised legal framework for the - Within Falkland Islands, which encompasses the current work existing on revising the law but also provides: budget
12 a. A clear implementation plan to deliver the approval changes to the revised criminal code and further legal changes; b. A prioritised list of required further legislation to improve the justice system (including areas such as a civil code, mental health support, updating the vulnerable adult legislation, revised sentencing powers, out of court disposals); c. A review of probate legislation (which has been noted as potentially out of date); d. A database of Falkland Islands’ Laws which can be accessed by legal practitioners and the wider population; and e. The appointment of a Law Commissioner.
Access to Justice.
Definition Accept / Cost Comment Lead Timeframe Reject Estimate proposed 16 Dissemination of better public information on court Accept Staff time This work is in hand – with DCS / June 2014. services and information on the justice system - Within the website the key priority. HoCS including: existing a. A court presence on the Falkland Islands budget Government website which sets out for the approval public all the information they need to know about attending court: links can be taken from there to lawyers firms, to policies, forms and information leaflets, all of which should also
13 be publicly available; and b. Public availability of leaflets through Falkland Islands Government offices, the Post Office, lawyers and the CAB. 17 That a strategy is implemented to ensure all those that Accept in HoCS Within 12 months need legal representation are able to access it, this part. of arrival would include: a. The introduction of non-legally qualified lay a) – none of the parties advocates, associate prosecutors and court consulted on this review felt clerks: this may generate enthusiasm amongst that this was required in the those so appointed for careers in the law FI’s. In fact, it was regarded potentially developing these in the Islands; as completely impractical. b. Each relevant arm of government taking £21,000 trainees into their ranks which may also foster (recurring) b), d), e) – agreed. an interest amongst those who are qualifying to return to the Island; c) – it is not for FIG to c. A review of the CAB and if appropriate, review the CAB which is support provided to enable it to provide basic an independent legal advice along the lines of that provided by organisation. Law Centres in the United Kingdom; d. Existing links used to attract law students to f) This too is felt to be work in the Islands for a portion of their unnecessary on the Islands. holidays in order to staff law centres, whereby they gain experience of dealing with clients g) this is no longer the case while the Islands benefit from gaining legal today, with the existence of advice; FILS. e. Falkland Islands Government ensuring the maintenance of at least two firms of lawyers in h) HoCS to review what the Islands - even if this requires public needs to happen for the funding - and seeking to develop with them a agreed new Legal Aid
14 duty advice scheme through paralegals or scheme to be placed on a trainees; legislative footing and take f. The police and Attorney General’s Chambers appropriate action. working with Falkland Islands Government to explore how to set up a similar duty prosecutor scheme using associate prosecutors; g. The removal of the provision or expectation that those seeking advice go first to Pinsent Mason and then only secondly to the Falkland Islands Defence Services firm and that the latter firm consider paralegal staff to support the sole lawyer; h. That the current Legal Aid scheme be placed on a legislative footing and that it continue to be administered by the court through the newly appointed Head of Service and his or her staff. The scheme should be reviewed to ensure that it provides funding to those who require it in civil, family and criminal cases; and i. The list of advocates be developed by the Head of Service to produce a call down list of those willing to assist and advise either remotely or personally: it should also ensure a balance of representation between types of lawyers and between specialism. 18 The provisions regarding interpreters be reviewed and, Accept Staff time Proposed that the use of HoCS Within 12 months if necessary be made the subject of Ordinance or - Within language line be considered. of arrival. procedural rules. existing HoCS to make proposals budget approval
15 19 Forthcoming Fixed Penalty legislation is supported by - n/a This recommendation is out - - the introduction of other out of court disposals with the scope of the Courts. including the power of the police to caution, both formally and informally, and to extend this to the imposition of conditional cautions with a similar scheme being developed specifically aimed at young offenders. The opportunity should also be taken at that time to review how restorative justice could be embedded in the justice system. 20 A review of non-custodial sentencing options to Accept Staff time HoCS / Within 12 months provide a wider range of requirements more suited to - Within SM of arrival. the needs of the Islands (i.e. alcohol programmes, existing domestic violence programmes). budget approval 21 Laws to be enforced fully and consistently across the Accept Staff time In principle agree with AG Within 12 months jurisdiction of the Islands: without this there can be no - Within sentiment of this certainty to the law, offending or consequences, and existing recommendation. To what the potential for a lack of enforcement, lack of respect budget degree laws are consistently and differential treatment. It cannot be right that a law approval enforced across the Islands is purporting to be for the Islands does not carry weight to be reviewed. throughout the Islands.
Court Infrastructure
Definition Accept / Cost Comment Lead Timeframe Reject Estimate proposed 22 Improve the current court facilities with better space Accept In principle agree that the DCS / Within 12 months planning and in particular: £50,000 existing facilities in the HoCS of HoCS arrival. a. A clear established booking procedure for the (one off) Court should be looked at –
16 court room; including the location of the b. A reception counter rather than the current court itself, as part of a hatch facility; broader review of c. Effective facilities, dedicated room(s) and new Government entrance for dealing with victims or vulnerable accommodation. witnesses, which may mean using some of the upstairs space for court use/offices/support DCS/HoCS to bring forward rooms; firm proposals to ExCo / d. Filing removed from the central corridor; SFC. e. Wiring secured under the floor to mitigate the current health and safety risks; and f. the purchase of appropriate video conferencing equipment to allow for the ability to bring specialist counsel and judicial support into cases quickly and effectively. 23 Agree separate accommodation for the court and Accept Significan As above. Agreed in TBC Within 18 months Legislative Assembly. t – would principle and to be reviewed of HoCS arrival. require as part of the broader review further of Government approval accommodation.
Working together to improve the justice system.
Definition Accept / Cost Comment Lead Timeframe Reject Estimate proposed 25 A Justice Improvement Group is created with Accept HoCS to facilitate. HoCS Within 6 months representation from Government House, Attorney of arrival. General’s Chambers, Court staff, Police, Social £50,000 Services (including probation), health, and defence (one off)
17 lawyers, with the Senior Magistrate as an observer. This Group would need clear terms of reference and be responsible for: a. Creating a strategic plan for improvements to the justice system; b. Coordinating implementation of the revised legislation (see section IV); c. Joint training between different parts of the justice system on key areas such as child protection, dealing with vulnerable adults, mental health issues and court procedures; and d. Succession planning, supporting the development of talent within the Falkland Islands with effective use of outside support. 26 A network of experts and advisors is created that can Accept Staff time This has already begun HoCS Within 6 months provide support on specific issues, utilising contacts - Within through recent cases in the of arrival. within the UK Ministry of Justice, the CDs and other existing court with Coroners, OTs. budget Pathologists and Family approval barristers now known to the Islands.
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Independent review of the Falkland Islands’ court system
On behalf of Falkland Islands Government and the Foreign and Commonwealth Office
Prepared by David Greensmith, Justices’ Clerk Cumbria and Lancashire and Cathryn Hannah, Head of the Crown Dependencies and Overseas Territories Team – Ministry of Justice
May 2013
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Contents
Acknowledgements...... 3 Executive Summary...... 4 Introduction ...... 6 Priorities that need addressing...... 8 I. Role of the Judiciary...... 8 II. Structures within the court system...... 11 III. Court administration and processes...... 13 IV. Improving the legislative framework...... 17 V. Access to Justice...... 19 VI. Court Infrastructure ...... 22 VII. Working together to improve the Justice systems ...... 24 Implementation plan ...... 26 Annexes...... 27 A‐ Terms of reference...... 27 B ‐ List of meetings/people engaged with on the review...... 29 C‐ Bibliography/References ...... 31 D‐ The Review Team ...... 32 David Greensmith ...... 32 Cathryn Hannah ...... 32
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Acknowledgements
We would like to record our thanks to the many people who helped us so generously in the preparation of this Report. A full list of those we consulted is attached at Annex B.
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Executive Summary
The Falkland Islands justice system has seen significant changes over the last 30 years and it is clear that in order to meet the challenges of the future it needs to continue to evolve. The courts are increasingly dealing with complex issues surrounding youth crime, alcohol abuse, child protection, sexual assault and domestic violence. Many of these involve vulnerable witnesses or victims whose needs have to be considered. Not only do these issues play out in the criminal courts, they also impact on the civil and family courts, which need additional lawyers and judiciary not connected with the criminal proceedings. With the likelihood of changes in the Falklands community in the near future brought about by the oil extraction industry, including population changes with transient workers and contractors being involved in court cases, it is particularly important that the court service and justice system as a whole adapts now to ensure that it meets the future needs of the population.
Everybody we spoke to shared a desire to ensure that the justice system in the Falklands delivers what is needed for the Falkland Islands and its people. In a small jurisdiction such as the Falkland Islands, a failure to deal effectively with rule of law issues could risk permanent reputational damage and questions as to the viability of the Territory as a whole.
In conducting the Review we spoke to a variety of court users and those that worked for the court and a clear consensus emerged on the issues facing the court system and what needed to happen to strengthen it for the future. Based on these discussions and our own analysis we have sought to make our recommendations proportionate and tailored to the Falkland Islands. We examined the following areas: I. The Role of the Judiciary – Clarity is needed on the role and independence of the judiciary in the Falkland Islands and how it relates to the Falkland Islands Government. Judicial appointments and training need to be codified and a code of conduct established. There also needs to be consideration to bringing in specialist judicial support from the UK and potentially other Overseas Territories when needed. II. Structures within the court system – The structure of the court system is not as effective as it could be: the Summary Court needs to be used more effectively and there is a need for specialist court sittings. A contingency plan needs to be created to ensure the courts service can cope with more major, high profile or complex cases and once the new court structure is decided roles and responsibilities need to be reviewed. III. Court administration and processes – There needs to be a legally qualified Head of Court Service, who can advise the Justices of the Peace in the Summary Court and provide leadership within the court administration. Currently court processes are confusing and inefficient and therefore need to be streamlined and communicated effectively to the public. IV. Improving the legislative framework – There has been significant work by the Attorney General’s Chambers to improve the legal framework in the Falkland Islands; this work is critical to ensuring that the current confusion on what law is applicable is resolved and therefore needs to be properly resourced. It is also critical that there is a clear implementation plan for this work so that once work on the law is completed it can be implemented by service providers effectively. V. Access to justice – Significant concern was raised by those we spoke to about the difficulties in obtaining legal representation. It is recommended that a strategy is implemented 4
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which includes the use of lay advocates and addresses the ability to develop legal talent within the Islands. Public information on the justice system needs to be improved. Alternative sentencing options also need to be considered, with particular reference to vulnerable groups such as the young, mentally ill and offenders with substance abuse problems. VI. Court infrastructure – The court building is currently poorly laid out and does not effectively cater for vulnerable witnesses. The court layout needs to be improved, with a new door for vulnerable witnesses, better technology and wiring in the court room safely secured. In the longer term the court and Legislative Assembly should be housed in separate buildings. VII. Working together to improve the justice system – The most concerning element of this Review was seeing the dedication to the justice system in all those we spoke to, yet the inability of people to work together to strategically plan for the future. This is preventing important work from being carried out and we recommend that a Justice Improvement Group is established to provide a mechanism for prioritising aspects of the justice system which require improvement. This Review was only tasked with a “Review of court administration including staffing and processes to make recommendations on an enduring system which is fit for present and future needs according to the provisions in the Falkland Islands Constitution and resource constraints of the Islands.” However, the different elements of the justice system are interrelated and in order to ensure that the Falkland Islands justice system is fit for purpose for the future, we recommend that the Falkland Islands Government commission a wider review of all elements of the justice system.
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Introduction
Upholding the rule of law is an essential requirement of any democracy: key elements of this are an independent and effective judiciary and the ability of the public to access justice effectively. All court users are entitled to expect and to enjoy the same fair hearing rights, in conformity with the fundamental principle of equality before the law. The FCO White Paper on the Overseas Territories in June 2012 recognised this point, stating: “The Territory judiciaries are separate and independent of the locally elected governments in order to ensure the rule of law is enforced impartially and consistently no matter who is in power”.1
Over the last 30 years substantial changes have been made to the court service and the justice system as a whole in the Falkland Islands. However, in order to ensure that the rule of law is maintained and is fit for purpose for the changing needs of the population, the court service needs to adapt further. Over the last few years a series of issues have been identified in relation to the legal framework underpinning the Falkland Islands’ justice system, including the need for the independence of the judiciary to be understood by all those who interact with the court service, the state of the laws, staffing and procedural issues.
While there is a strong sense of community in the Falkland Islands and evidence suggests that the vast majority of Islanders are law abiding, the pattern of criminal and civil cases has begun to change and will continue to change. As well as low level criminal offences such as driving offences, the court hears cases involving assaults, domestic violence and sexual offences. Many of these offences involve mental health issues and alcohol abuse. They have a knock‐on effect on the civil and family courts, which need additional lawyers and judiciary not connected with the criminal proceedings. An increase in youth crime and a lack of structures and support to deal with these types of issues is also a concern. There has been a significant increase in the number of court sitting days from 59 days in 2009 to 103 in 2012 and it is expected to exceed 160 this year.
Over the last 20 years there have been changes to the population with transient workers, soldiers and contractors being involved in court cases. With the advent of oil extraction, there is the possibility of further population change and an increase in crime levels and in the types of cases tried in the court system. However, an increasing income from the oil industry could also have a positive effect on the ability of the Falkland Islands Government to increase funding to the court service.
While some of these issues have begun to be addressed in isolation, it is essential that there is a systematic and structured approach, in which the executive, legislature and judiciary work together to deal with both the current and future issues facing the court service and the justice system as a whole. Without this there is a significant risk that important issues such as child protection are not dealt with effectively which would be injurious to the people involved and the Falkland Islands’ reputation severely damaged as a result.
In undertaking this Review we have sought to take a proportionate approach, taking into account the size and the nature of the justice system in the Falkland Islands and the difference between it and the UK system. We have also been keen to ensure that our recommendations take account of the
1 FCO’s The Overseas Territories : Security, Success and Sustainability : A White Paper : June 2012
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It is important for the Falkland Islands to develop codes, processes and standards that are appropriate and proportionate to their needs, rather than simply replicating practices used in other jurisdictions. Throughout our recommendations it is implicit that in all cases what is needed is a Falkland Islands model, not a UK model.
Clearly not everything can be addressed at once, so it is important to prioritise immediate issues and at the same time create the building blocks to deal with the longer term issues. Improving the justice system needs to be prioritised by the Falkland Islands Government and appropriate resources put into strengthening the justice system. If this does not happen, Islanders will not get the justice system they deserve and the reputation of the Falkland Islands risks being damaged.
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Priorities that need addressing
We have interviewed a large sample of court users (Annex B) and undertaken a review of pertinent documents in relation to the Falkland Islands Court Service (Annex C). We have also held a workshop with court users to gain a collective understanding of the issues facing the court service. All these meetings and the workshop highlighted common themes in relation to the issues facing the court service and the areas in which it will need to develop in order to provide the Falkland Islands with a court service which is fit for purpose and can face future challenges. Using the experience within the review team we have come up with a series of recommendations which can be implemented as part of a phased approach over the course of the next 18 months.
I. Role of the Judiciary
It is clear from our discussions that there are concerns over how far the need for judicial independence is understood by some within the Falkland Islands community and within the executive and legislative branches of Government. The Bangalore Principles state: “A judge shall exercise the judicial function independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason”.2
While some tension between the executive and the judiciary is a healthy and inevitable part of any democracy it is important that the separation of powers is clear and safeguarded. At present there is no agreement on how judicial appointments should be conducted, the role of the judiciary and the Falkland Islands Government in court administration, the support needed within the courts system, funding for judicial training and other aspects of the courts system. This causes protracted discussions when issues arise, which takes time and causes disagreements. The executive and judiciary need to draw up a clear framework to ensure that responsibilities are clearly understood and articulated. This should include reference to the judicial leadership role within the court and tribunal system in the Islands.
Strength and resilience of the judiciary ‐ Those we spoke to identified concerns about the resilience of the judiciary and court to deal with the issues which might flow from the commencement of oil extraction in the Islands in terms of criminal, civil and commercial practice. Concerns were also expressed about the generalist nature of the judicial role within the Islands and a lack of specialist civil or family justices, although they spoke highly of the Senior Magistrate’s emblematic role for justice in the community. However, we do not think that there should be an additional professional judicial appointment as this would not be proportionate. In the longer term alternative models could be explored for the provision of this judicial role, with additional support provided from the UK or other Overseas Territories.
It is impossible in a small community not to be aware of issues affecting others. While in the UK this has been dealt with by requiring Justices of the Peace (JPs) from other courts to sit on cases where defendants are known to every member of the Bench, this is simply not practicable in the Falkland
2 Taken from the Bangalore Principles of Judicial Conduct 2002, were approved by the UN Commission on Human Rights in 2003 and endorsed by ECOSOC on 2007.
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Islands and we were impressed at the ability of the current JPs to understand and deal with this issue. However, our discussions have highlighted that there is no judicial code of conduct in the Falkland Islands. It is accepted best practice that every court should have a Code of Judicial Conduct that sets out the standards of ethical conduct to be expected of the Court. Such a Code serves a number of purposes by providing guidance to the members of the Court, informing Court users of the standards that they can reasonably expect of its judges and explaining to members of the public how judges behave and this should help securing respect and support for the judiciary.
In a similar way every court at every level should also have clear, publicly accessible policies to enable complaints to be made about (and between) staff and the judiciary regarding conduct, while making clear that judicial decisions can only be the subject of challenge through legitimate avenues of appeal.
Judicial training and appointments ‐ There is a clearly a strong working relationship between the Senior Magistrate and the JPs, who welcomed the training and support provided to them by the Senior Magistrate and Chief Justice. However, training is largely ad hoc and is dependent on the availability of the Senior Magistrate and Chief Justice. An appointments process exists for both JPs and professional judiciary within the Islands. If these processes were made open, transparent codified or publicly available, this would improve knowledge of and confidence in the courts.
If the UK were to continue to be the source of judicial support and appointments then reciprocal arrangements between the Falkland Islands court service and HMCTS, the Judicial Appointments Commission and Judicial College should be made to provide for the exchange of information and expertise. If the Overseas Territories (OTs) and Crown Dependencies (CDs) were viewed as the more appropriate link, then discussion could be facilitated through the Ministry of Justice and FCO to develop liaison/virtual networks between relevant judicial bodies/individuals.
Sentencing guidance ‐ UK sentencing guidelines are in use but without any formal adoption. Local variants should be developed by the Chief Justice and Senior Magistrate for use at all relevant tiers and placed on a statutory footing. If these were developed, that would provide considerable additional guidance to the JPs when sitting on their own (below).
Recommendations Within six months 1) The creation of a framework document between the Governor, Chief Justice and the Executive on a partnership between them in relation to the effective governance, financing and operation of the Court and Tribunal Service in the Falkland Islands. This should also cover, inter alia, roles, responsibilities, independence, provision of infrastructure and resources, relationship with other bodies, accountability to the legislature and Executive, performance, reports, audit and inspection and a review provision. A UK example of a framework agreement can be found here: http://www.justice.gov.uk/downloads/publications/corporate‐reports/hmcts/2011/hmcts‐ framework‐document.pdf.
2) The exploration of alternative models to provide additional judicial support, including a list of judges who specialise in family and children’s issues who could be drawn on as required.
3) The creation of a code of conduct and disciplinary procedure for the judiciary which draws on support and best practice from the UK, other OTs and the CDs.
4) A code of conduct should also be developed for those who prosecute and defend in the court. 9
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Within 12 months 5) The codifying of the appointment, training and system for JPs and Judges, to include:
a. advice on the appointment process from the Ministry of Justice and on training and management from the Judicial College. Support should also be provided for the judiciary to network with judges from similar jurisdictions (other OTs, CDs and Commonwealth countries); b. the publication of an agreed appointment process for JPs and the judiciary; c. a mentoring scheme for new JPs; d. performance of the JPs should be monitored with a minimum number of sittings per annum; and e. A budget for judicial training which should lie with the court service, but should be supported by a framework to assist in identifying appropriate training for all members of the judiciary within the Islands.
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II. Structures within the court system
Is the current court structure/court system fit for purpose? There is no doubt from our meetings that it functions, there is little if any backlog, and it has the confidence of those who attend before it: they accept its authority and undertake the orders made. However, the state of the law is such that it makes cases appear to be in disarray, compounded by the skill sets of those appearing before the court and the lack of explicit jurisdictions within which to specialise: there are also systemic issues around legal representation, procedures and processes. From our observations and discussions the current system provides what is in reality a Crown Court perspective on cases for which this is not always proportionate: such cases would be fixed penalties or summary (magistrates) court matters in the UK. There is also currently a lack of specialist courts to deal with specific issues which are becoming a concern in the Falkland Islands. For example, despite significant concerns raised with us about youth crime, often related to alcoholism there is no youth court. There is also a risk that should a major event happen there would be limited ability for the court system both to deal with it and to manage its day to day business.
A small community should have the benefit of swift justice by local people. The Islands have a group of JPs who are in reality not sitting other than as Assessors with the Senior Magistrate. The summary court only sits if the Senior Magistrate is not present. The vast majority of cases appear to be those which would normally appear before a magistrates’ court in the United Kingdom – drunkenness, road traffic offences and low level public order and violence offences and which should be dealt with at the appropriate level. It is hoped that this Review will provide the impetus to design a court system that is proportionate within the Islands for the work which it is mainly required to carry out – involving a true magistrates’ (summary) court, a judge’s court (a Falkland Islands Court) and a Supreme Court, providing two appellate jurisdictions and ensuring the best justice system for the Islands. This work should also focus on alternative dispute resolution within the jurisdiction.
Recommendations Within 12 months 6) That the Head of Service (see section III) working with the Senior Magistrate, draft a contingency plan and a business continuity plan for the court service to enable them to be able to deal with major events and to ensure that day‐to‐day work is not compromised or delayed in the event of a major trial.
Within 18 months 7) That the court structure is developed, so that: a. There is a true summary court utilising the skills and commitment of local people while providing an appellate route to the Senior Magistrate; b. Different jurisdictions are created within the court structure so as to provide a youth court and a family court, with the JPs court forming part of these jurisdictions at first instance; c. There can be an increase in specialist civil and commercial court sittings (although we note that civil claims are mainly small claims and commercial matters are presently dealt with by the Supreme Court). We recognise that these different jurisdictions may involve the same people sitting in the same venue at different times of day but specialism, in so far as it is possible, is to be commended;
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d. There can be parallel sittings of summary and magistrate’s courts in the meantime using the current office of the Senior Magistrate; e. Building on the strengths of the Islands, community justice specialist problem solving courts be developed specifically directed at alcohol abuse, mental health and domestic violence. These could tap into the voluntary organisations that appear to be a strength as well as the statutory agencies; f. The summary court deals with licensing issues; g. The Head of Court Services can make uncontested or repeat orders such as Interim Care Orders; h. The Senior Magistrate is able to sit off‐Island; i. The exploration of creating a virtual court in specialist fields so that judicial support can be brought in by video link; and j. There is a publicly available list of specialist family and civil judges who can be called on to support the Senior Magistrate if required. 8) That the of roles, responsibilities and titles be reviewed, including whether: a. the Attorney General should continue in the role of Deputy Coroner as once the post of Head of Court Services is established, it might fit more appropriately with that role; b. once a new court structure is determined, the title of Senior Magistrate be changed (acknowledging the constitutional implications) to that of Falkland Islands Judge and the expectations for appointment to that post reviewed accordingly; and c. the Senior Magistrate continues to hold appointment as chairman of the Prison Board of Visitors.
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III. Court administration and processes
Those we spoke to highlighted the lack of capability within the court system: it is therefore important that this capability is developed. There is a lack of legal support within the court service, with the only trained lawyer permanently on the Islands being the Senior Magistrate, who has no legal support. We are aware of recent tension over the appointment of a Court Administrator and that the current post‐holder is not legally qualified. Changes in court staff and the low number of staff has also created tension in the system. At present the Court Administrator spends a significant amount of time acting as a court clerk, which takes him away from his day‐to‐day duties and is not a good use of his time.
The Senior Magistrate is also drawn into doing a significant amount of administration which is not a good use of his time. While there have been some attempts to review the court procedures and the administration of the court, limited progress has been made due to a shortage of staff. What the Review has identified is bureaucracy and inefficiency in the current court processes and systems. Those we spoke to suggested that many systems and processes are inappropriate and may be based on an incorrect analysis of the relevant legislation. Issues which have been highlighted include: • the administration of probate, where the court is asked to deal with the administration of small estates (less than £100) or where entire estates have passed by survivorship; • the administration of civil/debt claims where there is a cumbersome process of money passing between the debtor, the court, the bank, the treasury and the creditor; • a bureaucratic process for the collection of fine and a fees;
• out of date court forms, which either do not reflect the current law or create excessive bureaucracy. While it is recognised that forms may need to be updated following the proposed revisions to the law, it is ineffective to wait until this happens before revising and improving current forms; • court etiquette and (in)formality in the proceedings. There were mixed opinions on the need for strict observance of court etiquette in a small court. However, consistency and a clear understanding of what is expected of all parties in a court room is an important part of ensuring a court operates effectively. It is also important that professional address occurs in a court room, so that lawyers and the judiciary are not seen to treat anyone more favourably; and • Court Administrator’s time taken up with tasks that add limited value such as sitting in court observing proceedings, checking for spelling/grammatical errors in forms submitted to court and working through a poorly administered computer filing system and with an excessive, cumbersome and historic paper filing system. All these issues add to a feeling of inefficiency in the system and frustration from those using or involved in the court system. Processes are not published and those that are in the public domain are not translated into other languages. This is worrying as there is a significant transient population with individuals coming into the Falkland Islands with little or no English skills who need to understand what is expected of them. We have observed during our Review the application of gold‐ plated best practice to matters that did not require such treatment – proportionality must be borne in mind when taking forward any improvement to the processes and court procedures.
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Ultimately the potential for oil revenue provides the opportunity to consider how the court and tribunal service could be provided at (nearly) zero cost to Falkland Islands Government: judicial decision making or arbitration will be required on the Islands and the fees for this, along with a system of court costs that are hypothecated to the court service, could start to offset the costs of running the system. A victim surcharge, again properly hypothecated to support victims and witness groups, should also increase revenue and reduce costs for the Falkland Islands Government. Consideration should also be given to whether the Land Registry should 're‐merge' with a new court service if established.
While some of those we spoke to would like court administrative staff be appointed by and report directly to the judiciary, we do not believe this is necessary as it would create significant additional administration. While the judiciary should have a say in the appointment, day‐to‐day line management and job descriptions of court staff, with a clear framework of responsibilities the Falkland Islands Government still has a role to play in recruitment, pay and conditions and administrative management. Roles and responsibilities for court staff management should be articulated in the framework agreement.
Recommendations Within six months 9) The appointment of a legal qualified Head of Service. We suggest a title reflective of the role and status of the court service within the Island – perhaps Head or Director of the Falkland Islands Courts and Tribunal Service. They should be responsible for the provision of a courts and tribunals service on the Islands and other relevant territories. The Head of Service would: a. provide leadership for the administration of the court, monitoring its efficiency, progress and quality; delegating responsibilities to others and provide administrative and legal/judicial support to the Senior Magistrate as a key member of the court’s top team, for the creation/implementation of the operational plan, performance management and information requirements; b. improve organisational performance; recognise achievements and champion success; monitor customer service issues and the resolution of problems; c. be able to recruit, select and develop colleagues; monitoring and enforcing good attendance and high standards of behaviour where necessary; developing and maintaining productive working relationships amongst all colleagues within the court; d. enable the summary court to sit as a true court of first instance, as he/she would be able to advise JPs and undertake appropriate case management and other judicial roles under the direction of the Senior Magistrate; e. be responsible for planning, managing and deliver training for the JPs; f. initially be expected to have experience of advising magistrates within the UK or other similar jurisdiction (for information, someone with the appropriate skill sets in the UK would be paid £40,000‐£50,000) although we do not rule out developing local staff to take on such a role once established; g. be line managed for administrative purposes through Falkland Islands Government but would act otherwise on the direction of the Senior Magistrate and be given the same judicial independence as the Senior Magistrate and JPs in order to undertake the advisory and training role. He/she would not be subject to the direction of Falkland Islands Government in any way in connection with their judicial role. Protections would have to be established to 14
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ensure that the appointment is made on a partnership basis between the parties and that the postholder cannot be removed for any act undertaken in his or her judicial role without the agreement of the Chief Justice; and h. have a contract timed to provide handover and continuity between changes of Senior Magistrate. In the future we would hope that contract placement would not be necessary.
10) The appointment of a Deputy Head of Service/Administrator to assist the Head of Service, the post being: a. a stepping stone for a local individual to become legally qualified and ultimately undertake the Head of Service role; and b. trained to advise the JPs in simple straightforward cases as an unqualified Court Clerk. 11) A part time Usher be appointed to undertake the necessary administrative court tasks supporting the Senior Magistrate, Chief Justice and JPs: he/she could also double as a receptionist, for the time being shared between the Land Registry and the Court.
12) The procurement of internet based reference subscriptions for the judiciary and court staff.
Within 12 months 13) With the additional support identified above, the new court staff review and revise all court procedures, forms and systems and provide guidance to court users on how they work, in particular: a. Streamlining the process for dealing with the payment of debt – possibly with debtors paying creditors directly; b. Transferring the responsibility for the payment and collection of court fees and fines directly to the Falkland Islands Government; c. Changing and updating Pre Sentence Reports to provide shorter and more focused Reports which should be capable of being delivered on the day rather than in 3 ‐ 6 weeks;
d. Developing a new secure electronic filing plan for court business; e. Developing a retention schedule so that paper filing for criminal cases over three years old is destroyed and civil files over three years old are archived off site; f. Revising all court forms to make them compliant with current legislation and easily understandable; g. Publishing a clear, straightforward guide to court etiquette which is proportionate to a small jurisdiction and distinguishes between behaviour in and out of court; h. Issuing guidance and information translated in a limited range of languages to reflect the range of users before the court both within the Islands’ community and its transient population. Where practicable, such policies should be produced jointly with other administration of justice agencies; and i. Once the post of Head of Services is established, a further review will be needed to identify whether there is administrative work presently being undertaken by the judiciary which could be taken over by the administrative staff, or judicial work of a case management and 'box work' nature that could be taken over by the legal qualified staff. 15
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IV. Improving the legislative framework
It is widely acknowledged that the laws in the Falkland Islands are not fit for purpose and there is a worrying lack of clarity over what legislation does or does not apply. This has been caused by a variety of factors: • the Falkland Islands have only been drafting their own laws for 30 years and there are some instances of past confusing drafting of legislation; • the decision to implement an arbitrary cut off point for UK legislation to be incorporated from 2004; • laws are inconsistent in their application with, for example, anomalies as to which procedures are applied by the court in the same cases; • the lack of a Law Commissioner to undertake regular reviews and ensure that Falkland Islands laws are up to date and take account of relevant changes to UK legislation;
• under‐resourcing of law drafting within the Attorney General’s Chambers. This has resulted in complex and confusing legislation, with out‐of‐date and at times contradictory laws, a lack of clarity over what law applies and significant time taken up checking and clarifying the applicability of the laws, both during and prior to hearings. Laws are not accessible to the population or to lawyers, which adds to the confusion. The current situation creates a significant reputational risk to the justice system as a whole, as well as risk that people are not treated fairly. Those witnessing court proceedings have commented that the lack of clarity over the laws creates an impression that those in the court do not know the law and that there is ‘unprofessional bickering’ between lawyers and the bench.
However, this problem is already beginning to be addressed and the Attorney General’s Chambers has made significant progress reviewing the legislation within the Falkland Islands. Professor Daniel Greenberg has been instructed to draft a report recommending how the Falkland Islands should approach its legal framework and John Wilson is in the process of drafting a Criminal Code.
It is understood that Professor Greenberg will be meeting with the Attorney General’s Chambers in early May to discuss draft proposals and that, subject to appropriate resourcing being allocated, the legal framework for the Falkland Islands could be revised within the next 18 months. It is important that these proposals allow for a proportionate response that ensures that consideration is given to which UK legislation could be applicable to the Falkland Islands, but which is then tailored to suit the needs of the Islands. This initiative is critical in ensuring that the Falkland Islands judicial system functions effectively and that judicial decisions can be made in a timely and effective manner.
At present, there is no one office or department with statutory responsibility for the day‐to‐day practicalities of updating the statute book or for the public accessibility of legislation. This is clearly not an acceptable situation. In order to prevent a similar situation happening again it is important that, once the review of the legislation has been completed, the Falkland Islands Government appoints a Law Commissioner, as required by Section 3 of the Revised Edition of the Law Ordinances. This will also help provide expertise to ensure that new UK laws are considered against the relevance to the Falkland Islands and to recommend amended versions. Having regularly updated,
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The revised criminal code will also be critical in ensuring that the criminal law and processes are suitable for the Islands and that all those within the justice sector know what is expected of them. However, ahead of implementation of the code there will need to be significant coordination and training between the services involved.
These are welcome steps that will help to put Falkland Islands’ law on a firmer footing. With all this work a proportionate approach that takes into account the Falkland Islands context, while drawing on best practice from elsewhere, will be important.
While it is recognised that, with its limited resources, the Attorney General’s Chambers cannot do everything at once and that getting the law right will take time, it is important that there is a clear plan for what needs to happen when the law review is produced. This will be critical in ensuring that implementation of new laws is effective and coordinated with other actors in the justice sector. This will also help to ensure that other aspects connected with legislation are addressed in a timely and planned way, such as dealing with civil and family law and having a clear and accessible public database of the laws that apply to the Falkland Islands.
Recognising that the Legislative Assembly will have ultimate responsibility for passing laws, taking a planned approach to dealing with the legislative framework underpinning justice in the Falkland Islands will also help identify what further legislation may be necessary to ensure access to justice. This might include consideration of whether, for example, an updated Children’s Ordinance, Vulnerable Adult or Health and Safety legislation need to be included in the legislative programme.
Recommendations Within six months 14) Effective resources are provided to the Attorney General’s Chambers to ensure that the revision of the Falkland Islands law is completed effectively.
Within 18 months 15) The creation and implementation of a plan for implementing the revised legal framework for the Falkland Islands, which encompasses the current work on revising the law but also provides: a. A clear implementation plan to deliver the changes to the revised criminal code and further legal changes; b. A prioritised list of required further legislation to improve the justice system (including areas such as a civil code, mental health support, updating the vulnerable adult legislation, revised sentencing powers, out of court disposals); c. A review of probate legislation (which has been noted as potentially out of date); d. A database of Falkland Islands’ Laws which can be accessed by legal practitioners and the wider population; and e. The appointment of a Law Commissioner.
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V. Access to Justice
Fundamental to any justice system is the ability of the population to access it. There are currently two legal firms on the island ‐ Pinsent Mason and the recently established Falkland Islands Defence Service, which was set up by the Falkland Islands Government to help ensure the availability of legal representation. We have not been able to meet with the advocate from the Falklands Islands Defence Service but have heard positive comments about his work. It is key to access to justice that there are at least two defence firms in the Falkland Islands to ensure that both parties in a civil dispute can get representation and to deal with potential conflicts of interest. However, even with two firms there is significant risk that a lawyer without conflict will not be available.
All those we spoke to raised concerns about the ability of defendants to get legal representation. During the week of the review neither of the two defence lawyers were on island so we saw for ourselves the effect this had on the justice system with cases delayed and individuals being tried without representation. This lack of advice affects even minor criminal cases. The absence of legal representation impinges not only on the court but also on the Police through, for example, the absence of a duty solicitor or duty prosecutor scheme.
Work undertaken to help deal with this issue includes the formation of a list of legal advisors from the UK who would be willing to assist in the Islands, the creation of a legal aid scheme so that individuals can ensure they can afford representation and the establishment of a Citizens Advice Bureau (CAB). However, we were concerned to find that the CAB does not yet seem connected with service providers such as social services, so it is unclear what information it is providing or how widely it is publicised. Unfortunately we were not able to speak to anyone who works in the CAB to find out more about what it is doing.
The court has made positive moves recently to connect with the community. Mock trials, public speaking, debates and school visits have all been mentioned: we recommend that the new Head of Service be responsible for planning a community engagement schedule which reaches out to all sectors of the community, including those sectors which are otherwise 'hard to reach'. However, we found no leaflets providing explanations about using the court in the capital and would expect to see a range of such leaflets dealing with the criminal, civil and family jurisdictions: information on the court service is currently not available on the internet, which seems to us to be best location for the provision of information cross the Islands.
The community within the Islands is changing and the use of interpreters increasing. Cases should not be delayed because of a failure of processes or because of a failure to identify the need to access such services: a call down list should be developed for all agencies which would look at the ability to provide interpretation services remotely.
There is also a lack of alternative sentencing options for the young, the mentally ill, those with learning difficulties or those with substance abuse issues. Restorative justice has also not been fully explored in the Islands.
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Recommendations Within six months 16) Dissemination of better public information on court services and information on the justice system including: a. A court presence on the Falkland Islands Government website which sets out for the public all the information they need to know about attending court: links can be taken from there to lawyers firms, to policies, forms and information leaflets, all of which should also be publicly available; and b. Public availability of leaflets through Falkland Islands Government offices, the Post Office, lawyers and the CAB.
Within 12 months 17) That a strategy is implemented to ensure all those that need legal representation are able to access it, this would include: a. The introduction of non‐legally qualified lay advocates, associate prosecutors and court clerks: this may generate enthusiasm amongst those so appointed for careers in the law potentially developing these in the Islands; b. Each relevant arm of government taking trainees into their ranks which may also foster an interest amongst those who are qualifying to return to the Island; c. A review of the CAB and if appropriate, support provided to enable it to provide basic legal advice along the lines of that provided by Law Centres in the United Kingdom; d. Existing links used to attract law students to work in the Islands for a portion of their holidays in order to staff law centres, whereby they gain experience of dealing with clients while the Islands benefit from gaining legal advice; e. Falkland Islands Government ensuring the maintenance of at least two firms of lawyers in the Islands ‐ even if this requires public funding ‐ and seeking to develop with them a duty advice scheme through paralegals or trainees; f. The police and Attorney General’s Chambers working with Falkland Islands Government to explore how to set up a similar duty prosecutor scheme using associate prosecutors; g. The removal of the provision or expectation that those seeking advice go first to Pinsent Mason and then only secondly to the Falkland Islands Defence Services firm and that the latter firm consider paralegal staff to support the sole lawyer; h. That the current Legal Aid scheme be placed on a legislative footing and that it continue to be administered by the court through the newly appointed Head of Service and his or her staff. The scheme should be reviewed to ensure that it provides funding to those who require it in civil, family and criminal cases; and i. The list of advocates be developed by the Head of Service to produce a call down list of those willing to assist and advise either remotely or personally: it should also ensure a balance of representation between types of lawyers and between specialism. 18) The provisions regarding interpreters be reviewed and, if necessary be made the subject of Ordinance or procedural rules.
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19) Forthcoming Fixed Penalty legislation is supported by the introduction of other out of court disposals including the power of the police to caution, both formally and informally, and to extend this to the imposition of conditional cautions with a similar scheme being developed specifically aimed at young offenders. The opportunity should also be taken at that time to review how restorative justice could be embedded in the justice system
20) A review of non‐custodial sentencing options to provide a wider range of requirements more suited to the needs of the Islands (i.e. alcohol programmes, domestic violence programmes).
Within 18 months 21) A review to ensure that road legislation is appropriate and consistent across the jurisdiction of the Islands, including looking at the designation of roads within more rural areas: this will help public confidence in the law, and address the perception of a lack of enforcement in certain parts of the jurisdiction and differential treatment. [NB We understand that work to address these issues is already in train.]
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VI. Court Infrastructure
In order to manage the court service effectively it is critical that the infrastructure that sits behind it is fit for purpose both for those that work in the court, and for those that use it.
The court is situated in the Town Hall, which is a large building with multiple uses, including as a Post Office, Philatelic Bureau, Registry and meeting and social venue. As currently laid out it is not user friendly. The court room itself is shared with the Legislative Assembly and public events and it is clear that tension can arise about the priority for use. We understand that in order to alleviate some of this pressure the court has purchased portable recording equipment so that more informal hearings can take place in the Senior Magistrates chambers. This seems a sensible step. While there is significant space and potential within the building, it is poorly laid out.
Social Services, police and court staff all expressed concern about the suitability of the current accommodation to deal with vulnerable witnesses and special measures facilities. Currently witnesses must either to walk directly past the defendants or through the Post Office and Philatelic Bureau where there is no privacy and news of their arrival is likely to spread through a small community. The space for lawyers to speak to their clients or for social workers/guardians to support their clients is found on an ad hoc basis and does not always meet the needs of those concerned, as there is a lack of both privacy and of a relaxing atmosphere.
There is also an issue with telecommunication issues with regard to the court’s ability to video conference with multiple counsel from outside the Islands. Being able to access specialist counsel and judges, if required, will continue to be an important and effective mechanism of ensuring specialist skills are provided in technical cases, such as child safety and commercial cases etc. In order for this to happen it is essential that the technical infrastructure is in place. While an initial outlay on equipment will be expensive, it will in the long run represent better value for money than flying counsel and judicial services down to the Islands and provide for speedier justice to the Islands. It will enable the Islands to position themselves where they should be – as a leading technological innovator within the OTs, with a preparedness to deal with the issues likely to flow from oil extraction. Investing now will be essential for the future.
Should the court stay in its present building in the longer term, it may be worth considering moving the Land Registry elsewhere, as this would provide a large space suitable for conversion to meet most of the presently identified shortcomings: better use of the available space will resolve many issues without the need for major building works.
Recommendations Within six months 22) Improve the current court facilities with better space planning and in particular: a. A clear established booking procedure for the court room; b. A reception counter rather than the current hatch facility; c. Effective facilities, dedicated room(s) and new entrance for dealing with victims or vulnerable witnesses, which may mean using some of the upstairs space for court use/offices/support rooms; d. Filing removed from the central corridor; 22
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e. Wiring secured under the floor to mitigate the current health and safety risks; and f. the purchase of appropriate video conferencing equipment to allow for the ability to bring specialist counsel and judicial support into cases quickly and effectively. Within 18 months 23) Agree separate accommodation for the court and Legislative Assembly.
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24)
VII. Working together to improve the Justice System
While all those we spoke to want what is in the best interests of the Falkland Islands and its justice system, many highlighted the difficulties in the relationships between the executive, the legislature and the judiciary. In particular concerns were expressed that the personalities and relations between individuals prevented a discussion of issues facing the justice system. This is worrying and risks creating a situation where important strategic issues that the justice system is facing are not addressed and decisions on justice issues could be seen as being made based on personal dispositions rather than on the evidence available. It is also causing a reputational risk to the justice system both within the Falkland Islands and internationally.
The partnership agreement (suggestion in section I) will hopeful serve as a useful tool to codify the relationship between the judiciary and the Falkland Islands Government. However, as highlighted above many of the issues facing the justice system are systemic issues that cut across the different elements of the justice system. It is therefore important that there are clearly established mechanisms for prioritising and supporting the more strategic issues facing the Falkland Islands justice system and ensuring that all those with an interest are able to contribute to the discussion.
It is recognised that limited resources can create a culture of ‘firefighting’ and operational concerns taking precedence over dealing with structural and systemic issues. This is a risky approach: as highlighted above, the Falkland Islands justice system needs to adapt to ensure it is robust enough to deal with present and future challenges. This takes time and coordination. Resources need to be invested in the justice system to ensure it is able to deal effectively with the issues it is facing and these resources need to be targeted, strategic and part of a longer term plan.
Those we spoke to told us that they were frustrated with the number of projects started but not finished, reviews conducted but not followed through and money and time wasted without delivering discernible results. This is partly the reflection of frequent changes of senior staff with differing priorities, a lack of consistent political buy‐in and no consistent mechanisms for coordinating effectively across the justice sector.
Issues such as improving the law, having procedures to deal with youth crime, mental health, child safety, supporting vulnerable witnesses, victim support, alternative sentencing options, reducing reoffending, fixed penalty notices, out of court disposals and alternative dispute resolution, all cut across the justice system. While cooperation clearly occurs on specific cases there have been limited attempts to take a coordinated, strategic approach to wider issues. Clearly all these issues cannot be dealt with at once, but with evidence and support from across the justice sector, approaches that cater for the Falklands’ particular circumstances can be developed. A cross sector approach will also help ensure that resources are directed to the appropriate areas, projects are completed, outcomes are measured and risks managed.
Key to all of this will be the training and effective appointment of staff. Ensuring the right skill sets within the justice system will inevitably require a balance between ensuring that home grown talent is supported, nurtured and increased, while accepting the need for external and specialist support in certain areas. For this to be successful training needs to be prioritised, regular and systematic. This does not seem to be the case in all areas of the justice system.
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The population of the Falkland Islands is small and it is not always possible or desirable to have and maintain specialist legal skill sets on the Islands. However, this can mean that when difficult issues arise there is limited support or expertise available. The success of the justice system in getting appropriate external support and expertise has been mixed and, too often, important roles are filled through a series of short term placements which do not allow for proper consideration of the required skill sets and the ability to understand the Falkland Islands context. Therefore it is important that creative solutions and effective processes are put in place to secure support from the UK and other jurisdictions. This support can take the form of training, advice, mentoring and where necessary providing an effective pool for permanent recruitment or short term support from individuals with the appropriate skill sets.
Recommendations Within six months 25) A Justice Improvement Group is created with representation from Government House, Attorney General’s Chambers, Court staff, Police, Social Services (including probation), health, and defence lawyers, with the Senior Magistrate as an observer. This Group would need clear terms of reference and be responsible for: a. Creating a strategic plan for improvements to the justice system; b. Coordinating implementation of the revised legislation (see section IV); c. Joint training between different parts of the justice system on key areas such as child protection, dealing with vulnerable adults, mental health issues and court procedures; and d. Succession planning, supporting the development of talent within the Falkland Islands with effective use of outside support. 26) A network of experts and advisors is created that can provide support on specific issues, utilising contacts within the UK Ministry of Justice, the CDs and other OTs.
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Implementation plan
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Annexes
A‐ Terms of reference
FALKLAND ISLANDS: REVIEW OF COURT PROCESSES
Terms of Reference
Under an initiative, jointly funded by the Falkland Islands Government and the Foreign and Commonwealth Office, a project of reform of the local courts is underway. To support the efforts and to ensure all aspects of the court system are examined they are requesting an expert in legal and court processes and administration visit the Falkland Islands for a period of two weeks to carry out a full independent review of the court systems.
Purpose:
¾ Review of court administration including staffing and processes to make recommendations on an enduring system which is fit for present and future needs according to the provisions in the Falkland Islands Constitution and resource constraints of the Islands.
Ideally the reviewer should have considerable knowledge of and experience in legal matters in the administration of court processes.
Method:
Observe court processes and operation.
Meetings with:
• Senior Magistrate
• Court Staff
• Attorney General
• Falkland Island Government ‐ Chief Executive and Corporate Services Manager
• JP’s
• Police
• Probation
• Social Services
In addition, briefing meetings with Government House and Members of the Legislative Assembly.
Outcome:
Recommendations for improvements/change in basic court processes, court management, ensuring the independence of the judiciary is maintained.
Recommendations on staffing, reporting and accountability
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Accountability:
Report should be sent to Government House and the Chief Executive of the Falkland Islands Government.
Background:
1. The Falkland Islands are a British Overseas Territory around 8000 miles from the United Kingdom. The Constitution of the Islands contains the general principles set out in the Universal Declaration and the European Convention on Human Rights. The main Courts are The Privy Council, the Falkland Islands Court of Appeal which sits in the UK, the Supreme Court, the Magistrates Court, the Summary Court and the Coroner’s Court.
2. The law is based on English law, which is supplemented by local legislation. There have been few updates since 2004 which means in general terms that presently the procedural rules which apply are of the ‘old’ system.
3. The only resident judge on the Islands is the Senior Magistrate with the same jurisdiction as a Circuit Judge in both the Crown and County Courts. The Senior Magistrate is also the Coroner and the Chairman of the Tribunals. The Supreme Court is headed by the Chief Justice who is not resident. The Senior Magistrate also acts as Supreme a Court Judge in the absence of the Chief Justice. The Supreme Court has roughly the same jurisdiction as the High Court in England.
4. There are a number of lay Justices of the Peace who preside over the Summary Court. The Judiciary are presently supported by a non‐legally trained Court Administrator, who also acts as Clerk to the Magistrate and Registrar of the Supreme Court. The Administrator is also a Commissioner for Oaths and deals with Probate and Divorce paperwork as well as small claims and other civil matters. In addition there is a Courts Assistant who assists the Court Administrator and deputises as Clerk to the courts on occasion.
5. The Falkland Islands are traditionally law abiding, there is a low crime rate and low rate of civil litigation cases. However, things are changing, with the prospect of growth in the hydrocarbons, fisheries and tourism sector the judiciary will face significant challenges.
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B ‐ List of meetings/people engaged with on the review
Review of the Falkland Islands Court Services Programme for visit by Cathryn Hannah and David Greensmith, Ministry of Justice 22‐30 April 2013
Date Detail Tuesday 23 April
8.30am Introductory meeting with His Excellency the Governor, Mr Nigel Haywood
9am Workshop with stakeholders (or their representatives) from all areas of the justice system
3pm Session with Senior Magistrate, Mr Carl Gumsley
Wednesday 24 April
8.30am Meeting with Justices of the Peace
10am Observe court in session.
1.30pm Session with Attorney General, Mr Mark Lewis and his team.
3.30pm Session with Falkland Islands Government Director of Central Services, Mr Simon Fletcher
Thursday 25 April
8.30am Session with Chief Inspector Len McGill from the Royal Falkland Islands Police
10am Session with Ian Haywood, Courts Administrator, for discussion on how the system currently works, analysing pinch points etc
2.30pm Session on the social work and probation services with Simon Goulding, Social Work Team Leader and relevant staff
Friday 26 April
10am Session with Ruth Taylor JP & leader of Team Tranquil community group. 12am Phone conversation with the Chief Justice 1.30pm Review of the legislation programme with Attorney General and Ros Cheek
Monday 29 April 29
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10.30am Meeting with Governor Nigel Haywood
1.30pm Phone conversation with Dick Sawle – member of the Falkland Island Legislative Assembly
2pm Meeting with all available Members of the Falkland Islands Legislative Assembly and Chief Executive, Mr Keith Padgett, accompanied by Sandra Tyler‐Haywood
3pm Presentation to stakeholders of key recommendations
Workshop participants: Carl Gumsley, Senior Magistrate Ian Haywood, Courts Administrator Ros Cheek, Principal Crown Counsel Alison Inglis, Senior Crown Counsel Simon Golding, Social Work Team Leader Glen Sturdy, Community Psychiatric Nurse Inspector David Street, Royal Falkland Islands Police Jamie Wisby, Pinsent Masons LLP Ruth Taylor JP, Team Tranquil Keith Biles JP
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C‐ Bibliography/References
Documents produced by the Falkland Islands Government Organisation Chart for the Falkland Islands Courts Organisation Chart for the Falkland Islands Government January 2013 Position Establishment: Justice: Court Position Establishment: Justice: Attorney General Scheme A – Revised Salary Grades effective from 1st July 2012 Revised Salary Ranges for Staff in Grades B – A3 effective from 1st July 2012 Draft advertisement for the appointment of Justices of the Peace Job Description Template: Senior Magistrate Job Profile: Chief Justice of the Supreme Court of the Falkland Islands Information for Candidates: Post of Chief Justice Current Job Description Courts Administrator Job Description Template: Attorney General Job Description Template: Principal Crown Counsel Job Description Template: Personal Assistant to AG/Office Manager Job Description Template: Legislative Drafter Job Description Template: Legal Secretary Job Description Template: Senior Crown Counsel Job Description Template: Crown Counsel
Executive Council Reports Review of the Law Courts Structure 2 April 2012 Courts Staffing – review of structures 21 November 2012 Transfer of Criminal Cases to the Supreme Court 24 October 2012 Administration of Justice (Amendment) Bill 2009 25 June 2009
Falklands Islands Court Documents Training Manual for Justices of the Peace for the Falkland Islands October 2007 Legal Aid in the Falkland Islands: The 2012 Scheme Practice Direction 13th December 1994 : Convictions and Appeals etc. Practice Direction No 1 of 2011 : The wearing or robes etc. Practice Direction No 1 of 2012 : Guilty Pleas by post etc. Practice Direction No 2 of 2012 : Listing etc. Practice Direction No 3 of 2012 : Appeals brought under the Prohibited Goods Ordinance etc.
Legislation SI 2008 No. 0000 The Falkland Islands Constitution Order 2008 SI 2009 No 1737 The Falkland Islands Courts (Overseas Jurisdiction)(Amendment) Order 2009
Other Documents Draft Falkland Islands Law Revision Consultancy Report May 2013
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D‐ The Review Team
David Greensmith Justices' Clerk for Cumbria and Lancashire responsible for advising and leading 1600 Justices of the Peace on 12 Benches with 3 District Judges sitting at 15 magistrates' courts across two large rural Counties.
Previously Justices' Clerk for Greater Manchester for 10 years dealing with similar numbers in a major urban environment. Chief Executive for the Greater Manchester Magistrates' Courts Committee prior to the merger of the Committee with the Courts Service in 2004 to form Her Majesty's Courts Service
National President Justices' Clerks Society 2006‐7: responsible for a raft of national agreements embedding the judicial role of the legal adviser in the new civil service agency.
Member of the MoJ Review team on community justice in 2007 looking at building on the existing community justice programme through additional learning from the Red Hook and other community courts in New York.
Presently Project Leader for a 2 year joint UK/Latvian EU project to improve the efficiency of the justice system in Croatia prior to accession: successfully led the bid and negotiation process leading to staff on the ground in Zagreb in 2013 to implement the project.
Cathryn Hannah Currently the Head of the Crown Dependencies Team in the Ministry of Justice, the team also has responsibilities for justice support to the Overseas Territories.
Previously worked for the Stabilisation Unit (joint Ministry of Defence, FCO and DFID) from 2009‐ 2012, where responsible for civilian capability and subsequently in the Somalia Team. Achievements included a review of the counter narcotics strategy in Helmand, Afghanistan; lead civilian on a military exercise in Botswana looking at disaster preparedness; and a review of the African Union Mission in Somalia’s civilian outreach.
From 2008‐2009 helped in the setup of the Legal Services Board and acted as the first Board Secretary. Responsibilities included policy development, setting up the Consumer Board and defining the Board’s governance arrangements.
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