Jailing or threatening to jail lawyers

The news that a lawyer was “temporarily remanded… over his failure to submit promised evidence…[and] spent a few minutes in the holding area for prisoners on Wednesday” (SN September 30) is indeed disturbing. Police Legal Adviser Mandel Moore had failed on several occasions to provide a video to a Magistrates’ Court presided over by Magistrate Leron Daly, who had taken the action against him, as reported by SN. This is a rare case of a lawyer being “remanded.” But threats to ‘jail’ lawyers by those who purport to dispense justice are not isolated occurrences. It occurs with frightening regularity for trivial reasons. Lawyers, especially young lawyers, are unlikely to confront legal rulings in the course of a trial or ask a magistrate or judge to recuse himself or herself for bias or the appearance of bias, for fear of a charge of contempt in the face of the court and imprisonment. This is based on living experiences.

This Damoclean threat against lawyers undermines the foundation of justice and the rule of law. It can breed fears among lawyers that are not conducive to a robust defence of the interests of citizens seeking justice. The intimidatory potential of rude and threatening justice officials is aggravated by the genuine fears of lawyers that a complaint will generate continuing hostility and adverse decisions when they again appear before those same officials. Thus, unrestrained, the few who feel that appointment to the bench invests them, not with humility, but with untrammeled power, do not hesitate in seeking to suppress contrary or impassioned opinion with rudeness or threats. The few, generally low achievers in dispensing quality justice, are a threat to the integrity of the justice system.

There is a well-established culture of courtesy that flourishes in legal practice. This culture becomes more noticeable the higher the level of the court. It is not that at the magistrates’ level courtesy is not practiced. But the rapid turnover of cases and the vast amount of contentious matters that have to be dealt with by magistrates and lawyers appearing before them, can easily erupt into disputatious exchanges, or generate enough tension to propel a magistrate, or even a lawyer, over the edge. However, for a person in authority in any branch of the justice system to seek to win an argument by jailing, or threatening to jail, or being rude, to the person on the other side, smacks of abuse of power. The view that appointment to a position that involves the dispensation of justice invests the appointee, not with the humility of service, but with the power of peremptory fiat, is or should not be acceptable.

There is another aspect. Shortly before retiring as President of the Supreme Court of the United Kingdom, Lord Neuberger gave a lecture: “The Grace of God is in Courtesy” (October 2016) in which he said: “However, as a consumer, whether as a citizen reading newspapers and listening to the news, or as a Judge, listening to the arguments in a legal case, I have no doubt that but insults and rudeness detract from the quality of the argument and therefore from the reliability of the outcome. And as a former barrister, and thus as a participant rather than as a consumer, I felt similarly. It made for a smoother running of the case and for greater concentration of the essential substantive and procedural issues involved in the case, if there was mutual cooperation and respect between all the lawyers, and the Judge, involved in the case.” In 2017 I witnessed Lord Neuberger apologizing profusely to a lawyer who had appeared before the Supreme Court and was on the losing side in a case. The court had grilled him extensively, but politely, on the arguments that he was advancing, and for that Lord Neuberger felt the need to apologise.

What Lord Neuberger said might not be directly relevant to the issues before us. But his statement underlines the importance of courtesy on the part of both lawyers and judges in the practice of law and the decision-making process. It enhances the quality of justice. Judges of our Court of Appeal and the Caribbean Court of Justice have always set the examples of courtesy in the legal profession. This happens even in cases in which the issues are vigorously pursued and the Judges’ questions are extensive and penetrating. When they are not, the impact is so dramatic that headlines ensue. Not to mention the traumatic effect on the threatened lawyer. Noncontroversial matters in the Magistrates and High Court are not newsworthy so that journalists are not present. Nevertheless, the effect on the lawyer involved is no less impactful. What is lost by arrogant and rude behaviour is greater concentration on the essential issues involved in the case, as suggested by Lord Neuberger.

Whether or not the conduct of Mr. Moore constitutes contempt in the face of the court, which is the only basis on which his liberty can be curtailed, and, if so, whether or not he was given an opportunity to be heard, are relevant issues. So, too, is whether the Chancellor legally can and, if so, should assign the case to another magistrate. But these are not matters within the remit of this article.