Tuesday, April 1, 2014
Recent judgments in the local High Court are perhaps as divisive and unsettling as the row that pits Jamaica against Trinidad over immigration issues, which has the potential for social instability in the region.
The courts are plagued with finding the optimum way to impose sentences on convicted offenders. The courts are bobbing and weaving, uncertain of their target objectives and their mission, lost in the Sargasso Sea of the turmoil that is characteristic of our times.
The ever visible institution of the court is hardly a fly-by-night leader and the judiciary's leaders must decline sending mix signals; they ought to be decisive and assured and confident in their utterances and actions. Society as the client needs to better understand how the court functions in order to best find favour and comfort in its determinations.
The court must bridge the gap between its lofty superstructure that is tailor made to communicate in its own language and procedures, and that of the common litigant/defendant imbued with apprehension due to basic ignorance. We know as of now that the broad concept of the rule of law, inherent in an English Legal System, remains the guiding principle for stakeholders. We know and feel that the court in large part is settled on its role. However we are hesitant to believe that it is not as confused as many observers in the layman's world as to its mechanisms, particularly in sentencing and penalties. The certainness of the court ideally must be predictable.
When it gets it wrong it is a social time bomb that seismically affects the social order. This ushers in critical condemnation and contemptuous ridicule amongst law abiding citizens searching for that elusive tranquility: the Holy Grail of man's basic instincts.
The practice of law to the layman's thinking is one of glorified common sense; a standard that has merit.
Anolda Fenton, the popular Boston-based Montserratian lost her life in an apparent domestic dispute at her Brades home, nearly two years ago. She was gruesomely slaughtered by her ex-lover who previously shared her home. Her death was so shocking that it best fits a horror film and it rippled painfully throughout her large social sphere of well wishers. Knowledgeable observers view her killing as an act that was intentional, deliberate and willfully executed; it seemed coldly planned, timed to precision and motivated likely by a revengeful spirit.
The offense of murder is hardly better defined than in this instance. Taking a person's life with intention to do so is classically murder. Having thought of it you did it. Act and thought in unison.
The fact is that the court allowed the charge of murder to be reduced to manslaughter on the grounds of provocation - that Anolda Fenton provoked John Jones to the extent that provocation was a relevant factor in the court's assessment of the killer's state of mind at the time of the act. At least the evidence would have shown that the provocation was never immediate if it at all qualifies in law. That being so the court accepted that Jones's actions did not give rise to murder but instead supported the lesser offense of manslaughter which attracted a lighter punishment of 11 years. This is an outrage on the concept of proportionality it is argued by many a decent citizen.
The provocation element remains a puzzle. Who lead and provided evidence of provocation? Was that evidenced in court by the defense and how was it done? Did the prosecutorial arm speak on behalf of the murdered Anolda in defense of the State and people? How could the prosecution stomach a defense of provocation in this particular case? What role did Anolda's sister, former OECS Ambassador to Canada, Laurine Fenton play through her evidence? Did her utterances and representations in any way help to bolster the provocation argument as court watchers, including jurors firmly claim? Was there really collusion amongst legal practitioners at the trial that compromised the case to the Anolda's dishonour?
To what extent are the professional leanings of the judge a factor in sentencing? Is the dispensation of justice dependant on the personality of court actors? Anolda's case was heard by a judge steeped in defense tactics and strategies. Did this fact somehow impact the court and prejudice her case?
Each criminal case has its own unique circumstances that guide rulings. The apparent disparity in penalties raises eyebrows. Contrast Anolda's with the gruesome head hammered death of businessman Aubrey Barry. Murder conviction was secured as the self-defense strategy failed on the evidence. Here the actors on both sides of the case were different. An experienced judge with a prosecutorial background presided and did this hurt the defendant? The sentence imposed (35 years) was much different for an apparently similar offense and questions of constancy in sentencing arise as this is important to the acceptance of justice, craved by our society.
Because of this apparent inequity in penalties the public is inclined to reason that legal fate relates directly to the luck of the draw in terms of the court actors at work. This thinking tarnishes the credibility of the judicial system and demotivates law enforcers in the course of their work. Signals are surely mixed from the judicial arm of state governance.
Sir Brian Alleyne, a former Chief Justice of the OECS is never short of opinions on justice. The law is a living entity that develops with social norms and expectations he said. But sentencing is not about revenge and retribution. It must be legally based, lacking in emotion and therefore rational. Vengeance is of society but not of the court since guidelines for sentencing set down by legislature or court and judges balance these guidelines in light of circumstances of the case.
Interestingly Sir Brian continued that judges must be socially aware and conscious of public interest and circumstances in the case. This column is submitting anecdotally that Judges, familiar with the society in which they work are believed to adopt additional information outside the court arrangement and that this informs their judgment in court.
If justice begins and ends in the court, the moral content of the judge must never ever be questioned. The judge must be a cut above the average. Only so can he embrace excellence in leadership at the court level. Careful selection of judges is an important cog in the wheel to erase guesses and would lend confidence from civil society.
In its confused state there must be miscarriages of justice which put the judiciary on constant trial and its integrity at peril. The confused state opens the door to a certain degree of political correctness that compromises cases, further victimizing victims and protecting the bad guys of society. It gives favour to the criminal over the victim. It suggests that it is wrong to punish criminals at all. Rehabilitation is the answer.
Charles Dickens famed English writer of the early 19th century theorized that the law is an ass. He may be of that opinion still.
