PROCEDURAL FAIRNESS A MANUAL A GUIDE TO THE IMPLEMENTATION OF PROCEDURAL FAIRNESS IN THE COURT SYSTEMS OF THE JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO 2 PROCEDURAL FAIRNESS A MANUAL PROCEDURAL FAIRNESS A MANUAL A GUIDE TO THE IMPLEMENTATION OF PROCEDURAL FAIRNESS IN THE COURT SYSTEMS OF THE JUDICIARY OF THE REPUBLIC OF TRINIDAD AND TOBAGO PEOPLE FOCUSED. PEOPLE CENTRED. Any use of masculine nouns and pronouns in this book refers to all genders. This is a publication of the Judicial Education Institute of Trinidad and Tobago, with input from Justice Peter Jamadar JA, Kamla Jo Braithwaite, Trisha Dassrath and Elron Elahie. © Judicial Education Institute of Trinidad and Tobago, 2018 All rights reserved. Except for use in review, no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, any information storage or retrieval system, or on the internet, without permission in writing from the publishers. This publication is available in electronic format via the JEITT’s E-book Platform: www.ttlawcourts.org/jeibooks. Design and Artwork: Paria Publishing Company Limited Typeset in Scala PROCEDURAL FAIRNESS A MANUAL: A Guide to the Implementation of Procedural Fairness in the Court Systems of the Judiciary of the Republic of Trinidad and Tobago E-book 978-976-8255-81-5 Softcover 978-976-8255-80-8 PROCEEDING FAIRLY: Report on the Extent to which Elements of Procedural Fairness Exist in the Court Systems of the Judiciary of the Republic of Trinidad and Tobago E-book 978-976-8255-79-2 Softcover 978-976-8255-78-5 PROCEDURAL FAIRNESS A MANUAL 5 CONTENTS Introduction 7 Overview 7 What is Procedural Fairness? 8 Procedural Fairness in Trinidad and Tobago 8 Implementing Procedural Fairness in the Court Systems of the JRTT 9 Guide to this Manual 9 Procedural Fairness: Closing the Gaps 13 Conclusion 13 Foundational Principles 15 The Principles of Equality and Non-Discrimination 18 Procedural Fairness, Equality and Non-Discrimination 20 Best Practices Checklists and Self-Assessments 22 1. Voice 22 2. Respectful Treatment 26 3. Neutrality 31 4. Trustworthy Authorities 35 5. Accountability 39 6. Understanding 42 7. Access to Information 45 8. Availability of Amenities 48 9. Inclusivity 51 The JRTT Personnel Observation Form 54 Users of the Court Systems Feedback 57 Endnotes 63 Resources 63 Printables 65 6 PROCEDURAL FAIRNESS A MANUAL PROCEDURAL FAIRNESS A MANUAL 7 INTRODUCTION FAIR PROCESS MATTERS. EQUALITY AND RESPECT ARE FUNDAMENTAL. INTEGRITY IS ESSENTIAL. OVERVIEW In every society, there are prevailing cultural perceptions of, and feelings about how a Judiciary administers justice. These perceptions and feelings impact on the degree of public trust and confidence in, and therefore the legitimacy of the Judiciary. Perceptions of and feelings about a Judiciary, the courts and court processes are held by members of the general public whether or not they ever have to enter a court building or courtroom, or be involved in litigation or other business. These perceptions and feelings may be based on what is thought to prevail locally, from first-hand experience and/or from second-hand reports, and/or from what is, or what is thought to be the norm in other countries. As a result, shaping, managing and responding to these perceptions and feelings is one of the important roles and functions of the Judiciary of the Republic of Trinidad and Tobago. One effective way for the JRTT to JRTT: The Judiciary of the Republic of create a positive perception of, and Trinidad and Tobago engender positive feelings about JRTT Personnel: Judicial officers and itself is by making internal changes staff within the court systems of the (improvements), with Users of JRTT the Court Systems as a main and Internal Actors: JRTT personnel and central focus. By concentrating court administrators within the court on variables that are more or less systems of the JRTT within its control—ie the behaviour of judicial officers, staff and court Users of the Court Systems: People administrators; how these groups who use the court systems of the JRTT interact with each other, and how they are seen and experienced by Users of the Court Systems; how court processes operate, and the overall court building experience—the JRTT will be able to impact the perceptions and feelings of Users of the Court Systems. An effective and sustainable way of making this impact is by implementing Procedural Fairness practices that are tailored to Users of the Court Systems’ needs and concerns. 8 PROCEDURAL FAIRNESS A MANUAL WHAT IS PROCEDURAL FAIRNESS? Procedural Fairness describes the kinds of behaviours and systems that inspire trust in, confer legitimacy on, and bestow authority upon court systems, and internal actors within these systems. It prescribes core, non-negotiable values and standards that are necessary for the legitimate and trustworthy exercise of legal authority within a community and society. Procedural Fairness therefore demands integrity of actions, behaviours, and systems in relation to its constitutive elements; an integrity that must be consistently experienced and perceived by all stakeholders in the court systems, users of the court systems, potential users of the court systems and the general public. Integrity meaning consistency between behaviour/actions and declared values and regulatory frameworks—on personal and institutional levels—in all circumstances, in a way that is transparent and accountable. PROCEDURAL FAIRNESS IN TRINIDAD AND TOBAGO To uncover these core, non-negotiable values and standards in the context of the court systems of the JRTT, the Judicial Education Institute of Trinidad and Tobago (JEITT) conducted a two-year research project on Procedural Fairness in Trinidad and Tobago. This research is detailed in the publication Proceeding Fairly: Report on the Extent to which Elements of Procedural Fairness Exist in the Court Systems of the Judiciary of the Republic of Trinidad and Tobago.1 According to this research, there are 9 elements that must exist for Users of the Court Systems to experience Procedural Fairness. They are: VOICE RESPECTFUL TREATMENT NEUTRALITY TRUSTWORTHY AUTHORITIES ACCOUNTABILITY UNDERSTANDING ACCESS TO INFORMATION AVAILABILITY OF AMENITIES INCLUSIVITY PROCEDURAL FAIRNESS A MANUAL 9 The JEITT’s research further discloses that without Procedural Fairness and whole system integrity in relation to it, the court systems of the JRTT will likely be perceived and experienced as untrustworthy, illegitimate, and non-authoritative alienating spheres for the resolution of society’s legal conflicts and disputes. IMPLEMENTING PROCEDURAL FAIRNESS IN THE COURT SYSTEMS OF THE JRTT The elements of Procedural Fairness uncovered by the JEITT’s research and the practices needed to properly implement them within the court systems of the JRTT are not entirely new concepts. However, the umbrella of Procedural Fairness and the local research provide specific grounding for the need for their implementation, from the perspectives of Users of the Court Systems. It is therefore highly recommended that JRTT personnel (and court administrators) read the Proceeding Fairly Report, along with Reflections of An Interested Observer,2 the ethnographic narrative based on the research, in order to develop a better understanding and appreciation of these needs and concerns. In addition, the JEITT has produced two publications that, on their face seem to apply only to judicial officers. However, the principles set out therein can apply to all JRTT personnel, and embody aspects of the elements of Procedural Fairness, as follows: 1. Exploring the Role of the CPR Judge:3 the principles of Transformational Servant Leadership, the section on Special Concerns and the need to act mindfully and with compassion; and 2. Statements of Principles and Guidelines for Judicial Conduct:4 principles and guide- lines for conduct that demonstrate practical approaches to the implementation of Procedural Fairness. Excerpts are cited throughout this publication and reference is made to specific principles, guidelines and commentaries as applicable. Procedural Fairness places a positive obligation on all JRTT personnel to take responsibility for the implementation of the 9 elements. GUIDE TO THIS MANUAL Having established the importance of placing Users of the Court Systems first, and the efficacy of Procedural Fairness in positively impacting their perceptions and feelings about the JRTT, this Manual serves as a guide to the implementation of Procedural Fairness—by setting out practical measures that should be continuously undertaken by JRTT personnel. The main focus of this manual is on JRTT personnel because judicial officers and staff are the internal actors that interact most with Users of the Court Systems. Court administrators have more of a role of oversight and, as a result, while they are impacted 10 PROCEDURAL FAIRNESS A MANUAL by the need to implement Procedural Fairness, the practical function of this Manual does not directly affect them. The Manual first sets out Foundational Principles that should underpin all of the actions of JRTT personnel. These principles remind us of the need to constantly, and consciously focus on Users of the Court Systems. It then goes on to address the importance of The Principles of Equality and Non-Discrimination and how they intersect with Procedural Fairness. Following this are 3 main sections that contain tips and tools for improving, measuring and evaluating attitudes, behaviours and practices—with the aim of improving Procedural Fairness: 1. Best Practices Checklists and Self-Assessments; 2. The JRTT Personnel Observation Form; and 3. Users of the Court Systems Feedback. BEST PRACTICES CHECKLISTS AND SELF-ASSESSMENTS This section is divided into 9 sub-sections, 1 for each element of Procedural Fairness. The definition of each element is set out, along with a practical breakdown of what it means. This is followed by a Best Practices Checklist, grouped according to core aspects of each element, and each sub-section ends with a Self-Assessment for that element.