ADDRESS BY PRESIDING JUSTICETHE HONOURABLE JUSTICE BARRY LEON,

COMMERCIAL DIVISION, AT THE SPECIAL SITTING OF THE SUPREME COURT TO MARK THE OPENING OF THE 2016 – 2017 LAW YEAR OF THE EASTERN CARIBBEAN SUPREME COURT

 

Tuesday, 20 September 2016

Why are we here today?

I suspect some in this room this morning, perhaps many of us, asked that question about this Special Sitting of the Court – and earlier about the church service to mark the new Law Year, and the Procession to the Court. 

I know I did.  

Just as I have asked it in many past years, here and for the beginning of court years in Canada.  

This year, having the honour and privilege of presiding at this session, led me to consider that question in a different way. 

‎It led me to think about why we – like other jurisdictions in other free and democratic societies – take time each year to gather together to mark the commencement of the Law Year. 

Among the reasons – it seems to me – is that this is a time:

• to pause to remind ourselves about the critical importance of our justice system and the rule of law to the lives we are able to enjoy in a free and democratic society, and
• to remember that despite our long and deep traditions of independent and impartial justice and the rule of law, there is something fragile about them.

Unfortunately, we do not need to think too far back to bring to mind democratic societies where the fragility has been brought starkly to mind by the removal of democratic freedoms, by arrests and by attacks – physically or otherwise – on members of the judiciary, and the judiciary as an institution.

We cannot forget how fragile independent and impartial justice and the rule of law may turn out to be in a society.

Therefore, there is something particularly important about the public aspects of today: the church service, the Procession, and this open Special Sitting of the Court.

It is an opportunity for the public to see and hear the women and men who serve in the Territory’s justice system, and to reflect on how important that justice system is for us as individuals – and for us, collectively, as a society.

Importantly, the new Territorial Pledge, which was introduced and recited publicly on the 1^st of July – Territory Day,includes a pledge “to promote justice for all.”

I pledge to my country, the Territory of the Virgin Islands, to encourage national pride and dignity, render patriotic service, promote justice for all, be true to God and remain dedicated to these Virgin Islands.

Importance to Pillars of Territory’s Economy

We should keep in mind that the values underlying our justice system and rule of law are important reasons many of the people from other parts of the world come here – and have come here for years – whether to live and work, as tourists, or to incorporate business ventures.

Importance to Financial Services

The justice system and rule of law in the Territory are fundamental contributors to our Financial Services Industry, enablingthe Territory to have built a source of revenue that is so critical to the life enjoyed hereby so many.

We should remember that those who cometo incorporate here come not primarily for the false reasons we have heard so much in the past year.

An important underlying reason that many come to this Territory to incorporate is because they do not have at home what we offer them here.  

We offer them a stable, reliable society.

We offer them the rule of law.

And we offer them an honest, independent and impartial ‎justice system and judiciary to assure them that their rights willbe protected and their disputes resolved on their merits. 

Importance to Tourism

The second important pillar of the economy of the Virgin Islands is tourism, of course. 

If financial services is competitive globally – as clearly it is – tourism is even more competitive.  

The justice system and rule of law are fundamental underlying contributors to our Tourism Industry.

One of the TV news networks has an ad for its news reporting in which the journalist answers the question, "why I go there", referring to a more challenging part of our world. 

So why do tourists come here? 

Of course the Virgin Islands is one of the most beautiful places on this planet, with its sailing, diving and other water and land activities.  

But that is not enough.  

As someone who has travelled to places in the world where you walk down streets on edge, looking in each direction for danger lurking, watching strangers approaching with some suspicion, ‎hiding your wallet, seeing restaurants and hotels with armed guards in front, I appreciate that an important competitive advantage here is safety and security.

In important ways our safety and security are due not only to the men and women of our police and prison systems, who we also recognise today, but also to our criminal justice system and our criminal courts which, at the end of the day, is where ‘the rubber meets the road’.  

One only has to look to some other countries in the region to remember the importance of cherishing, respecting and supporting the safe and just society in which we live here. ‎

The criminal courts play a critical role in us having a safe society, and in the competitive advantage of safety to our Tourism Industry. 

Criminal Justice

We need our criminal justice system to offer honest and fair justice, open justice and timely justice.

The first – honest and fair justice – goes without saying.

Open justice, subject only to an appropriate balancing of other values and interests in our criminal justice system, is essential to public confidence in, and oversight of, the criminal justice system.

I will speak about the Media in this context later.

Timely justice is critical.

Persons accused of crimes often have a tremendous weight hanging over them.

It is not acceptable for accused persons, particularly persons in custody awaiting trial, to have to wait lengthy periods for their day in court.

It is not just the accused person's day in court.

Also it is the public's day in court – and the victim’s day in court – because it is the prosecution’s day in court too.

Timely justice must be provided through adequately resourcing our criminal justice system and our criminal courts. 

In addition, the Virgin Islands needs to implement much-needed criminal justice reforms that are in the pipeline.

In particular the Judiciary sees the benefits for the criminal justice system – and for achieving better justice for the people of the Virgin Islands – of the pending laws that will institute important reforms in four areas:

• our jury system – which the Director of Public Prosecutions mentioned in her remarks
• our evidence procedures for courts
• sexual offences
• DNA evidence

Civil Disputes

We need civil disputes in our society to be resolved either in our public civil justice systemin the public courts, or by arbitration or mediation. ‎The Chief Justice addressed the importance of Alternative Dispute Resolution in her Address this morning.

There needs to be a range of means for peopleto resolve – efficiently, fairly and cost-effectively – civil disputes of all types: including

• family disputes,
• disputes involving children,
• property disputes,
• employment disputes,
• consumer disputes, and
• local business disputes.

As we move towards to launch of the BVI International Arbitration Centre, which will enhance the position of the Virgin Islands as an international dispute resolution centre, we look forward to ways in which the public courts can support what the Centre will offer and promote to people here and globally.

Commercial Court

I would like to speak for a few minutes specifically about the Commercial Court, which of course is the Commercial Division of the High Court.

Commercial courts are in a competitive business, unlike other courts.

We are competing ‎with commercial courts in Hong Kong, Singapore, London, Cayman, Bermuda and elsewhere.

Those courts in many cases are well-resourced, and are increasingly innovative.

We are at a time where we have an opportunity to take the BVI Commercial Court to a new and higher level. The opportunity is now.

With real imagination, creativity and innovation, we can be at the forefront of commercial courts in the world. Bar none.

And we can do so on a financially self-sustaining – and I would say, if we chose to do so, on a profitable basis.

We can contribute more to the Territory’s economy – financially and otherwise – both directly, and more importantly, indirectly. 

In the new reality of international commercial dispute resolution, we must do so.

Our goal, in my view, should be to enhance and expand BVI as a primary Global Commercial Dispute Resolution Centre of choice.

And, as not infrequently we are called upon to support proceedings in other jurisdictions, we should have a wide range of judicial tools and resources in the Commercial Court for those purposes.

We also benefit from proceedings here that are ancillary to or in aid of proceedings in other jurisdictions.

A sound appreciation of the Court’s past and current situation is essential to understand properly:

• how it got to where it is now,
• its strengths . . . and yes, it's weaknesses, and
• it's best way forward in the longer-term interests of the people of the Virgin Islands. 

I say this as someone who has thought long and hard about the Commercial Court.

And I say this as someone who is fully committed to the success of the Commercial Court – and fully committed to the best interests of these Virgin Islands.

To assure the position of the Commercial Court as a leading – if not the leading – commercial court in the world, we should look carefully at a range of possible innovations and enhancements for the Commercial Court, and the laws of the Territory, in at least 10 major areas: 

1. an expanded jurisdictional mandate to bring more commercial disputes work to the Territory, by legislative changes, by changes to the Court’s procedural rules, and by contract
2. procedural innovations, enabling parties to have a greater say, on a case by case basis, in the processes by which their disputes are resolved in the Commercial Court, adapting from other dispute resolution mechanisms, most notably international commercial arbitration
3. adopting international standards and practices for the conduct of international litigation in the Territory by enabling non-BVI legal practitioners to be involved appropriately, as they are in major litigation centres around the world
4. establishing at least financial self-sufficiency of the Commercial Court, if not profitability
5. institutionalizing enhanced levels of service to parties and their legal practitioners
6. making available third party financing of litigation in the Territory
7. legislating needed mechanisms for the enforcement of court orders
8. expanding recognition of foreign insolvency office holders
9. engaging in cooperation and coordinationwithother commercial courts around the world under new transparent arrangements that are on the horizon, and
10. importantly, establishing a sound programme for the advancement of BVIslanders in commercial legal matters, both contentious and non-contentious, with the support and involvement of the legal and related communities in the Territory.

We Are in a Service Business

All of us – judges and all people working in all parts of the court system – need to remind ourselves constantly that we are in a ‘service business’.

We are in a service business as much as those who work in tourism or in financial services.

Court services must treat its customers – whether voluntary or involuntary customers – as we would want to be treated if we stood in their shoes.

It is a particular challenge as we have a certain monopoly.

The people coming before us usually cannot take their business elsewhere. (The exception, as I mentioned earlier, is in the Commercial Division because often litigants do have jurisdictional choices.)

The monopoly – and in the case of the Commercial Division, the competitiveness – adds a heavy responsibility to provide that service with courtesy, and to treat each of our customers with dignity.

A judge – or a person working in the court office or in a court room – who forgets this important aspect of our jobs is unintentionally undermining public respect for and confidence in the courts and the justice system. 

Facilities and Resources

We need to make available the resources to offer civil dispute resolution services and criminal justice, for people locally, and for people from afar who are supporting our economy.  

I have outlined some practical reasons that our courts are important to the Territory.

Reasons that often we may not consider.

We need to ensure that our courts are supported with their appropriate share of resources – in vibrant economic times but also in more difficult economic times.

We recognize that with the current economy, it is not the time to be calling for a significant expenditure on court facilities.

We do not need grand palaces of justice for the legal system in the Territory. 

We do need well-functioning suitable court facilities for all courts.

The Senior Magistrate reminded us of that this morning.

Facilities with the necessary equipment and supplies.  

Facilities that are maintained.

Facilities that meet the essential needs of people appearing before our courts, and the essential needs of the judges and staff of the courts.

The Senior Magistrate also reminded us of that this morning.

This is not about luxury.

This is an important part of building and maintaining a culture of respect for the institutions of government, and for the rule of law itself.

Pledges and other symbolic actions are important but they cannot succeed alone.

Legal Profession Act

One of the major developments in the legal world in the Territory during the past law year was the coming into force of the Legal Profession Act, about which much has been said in the remarks this morning by the Attorney General, delivered by the Solicitor General, and by Michael Fay QC.

The LPA is not only important to the legal profession but to the court system as a whole, and indeed in some ways to the economy of the Territory.

The Act has been before the courts already, as was noted in the AttorneyGeneral’s Address.

Suffice it to say that it has presented some interpretation and policy challenges which remain to be resolved by the Assembly and the courts so that the Act functions in the greater best interests of the Territory.

It may be that some issues, particularly policy issues, are resolved most appropriately by our elected representatives.

The Act gave life to the General Legal Council which, under the dedicated leadership of Mrs.Dancia Penn QC, has charged into the process of fulfilling the significant mandate given to the Council by the Act.

As was noted in an early address this morning, the Council needs to be resourced adequately so that the Territory can achieve the promised benefits of the Act.

Also, the Judiciary urges the Government to take the necessary actions to implement the Discipline Tribunal under the Act. This morning Mr. Paul Dennis QC spoke eloquently to this need.

Dealing with legal practitioners who are not fulfilling their professional obligations is a means of first, building trust and confidence in the justice system, and second, aiding the courts to function effectively.

The Importance of Legal Practitioners

Lawyers depend on the courts.

And importantly, the courts depend on lawyers.

People in all walks of life who come before the courts depend on lawyers.

Unfortunately, many who come before the courts cannot afford legal representation.

This is unfortunate for them – for other users of the courts, and for the court system itself.  

Mr. Dennis also spoke to the absence of adequate Legal Aid resources in the Territory for those who cannot afford a lawyer.

This is an issue in many other jurisdictions, large and small.

It may be an area in which some real creative approaches are needed in order find practical and affordable solutions.

It may not be realistic to expect that the Government will be in a position to provide the funding necessary to meet the need.

Judges depend on lawyers to present their clients' cases efficiently, effectively and honestly.

Lawyers have two roles.

First, representing their clients is one critical role. They must do so vigorously.

Their second role is as officers of the Court.

The two roles sometimes lead to stressful situations for lawyers.

Yet our system of justice depends on them fulfilling both roles.

Their reputations depend on them fulfilling both roles.  

As judges, and as clients, we thank all those dedicated, hard-working legal practitioners who fulfil those roles and who enable the courts to function for you, the public.

BVI Bar Association

We are grateful to the BVI Bar Association, which brings together the legal profession in common cause.

Under the leadership of Ms. Jacqueline Daley and her Executive for the past year, the Association has dealt with some challenging issues and has done valuable work within the profession and in the Virgin Islands community.

The Bar Association has a special responsibility to serve as guardians of the justice system, and to defend firmly judicial independence and judges who cannot speak publicly to defend themselves.

This they should not forget.

The Judiciary shares the desire of the Bar Association for a strong, active and effective Bench and Bar Committee.

We hope that such a Committee will be in place soon.

The Committee can and should be a valuable means of addressing many issues on which the bench and bar interact.

We applaud to Association’s initiative to introduce a Law Week in the Virgin Islands, which Ms. Jude Hanley, First Vice President of the Association, told us about. This is an important means of increasing the understanding of the public – including students – of the justice system and the rule of law. And in turn, increasing the public’s support and respect for our legal institutions.

We wish the Association continued success during this coming law year.

The Media

The media play an important role in our criminal, civil and commercial courts and our justice system as a whole.

In an era in which anyone with Internet access can be an amateur journalist -- with Twitter, Snapchat and other instant forms of social media at our finger tips – we need our professional media perhaps even more than ever.

Yes, in the past they had a responsibility to provide the news fairly and accurately.

Of course they still have that responsibility.

But now they also bear that responsibility in an environment when so-called news and opinion are coming at us all the time, from all directions, and all kinds of sources.

We are safer and freer, individually and collectively, because of our professional media.

We owe it to them – and more importantly we owe it to ourselves and our society – to enable them to do their jobs properly. 

One of the challenging issues for the courts and the media is achieving the appropriate balance between open justice and protecting the interests of persons involved in the judicial system, particularly victims in criminal cases.

And even more particularly, young victims – minors.

The Director of Public Prosecutions spoke to part of this challenge this morning.

In an era of social media, and in an era where bullying, including cyber-bullying, is a real concern, the challenges of achieving the right balance increases.

As difficult as the challenges are in large jurisdictions, the challenges are far more difficult in a small society.

We do not have the same anonymity here as exists in larger jurisdictions.

I have come to understand that simply not publishing names cannot be effective here to protect minors’ identities in the way that it is in a larger society.

Achieving a just balance in a small society should not be perceived as hostility to the media – balancing interests is always challenging.

It is a heavy burden on judges when the person at risk is a minor.

On-Line Publication of Territory’s Laws

A year ago at the Special Sitting, Justice Ellis urged, as a matter of priority, the online publication of the laws of this Territory.

On-line up-to-date versions of laws, particularly the most commonly referenced laws, is an invaluable tool which is indispensable to the modern legal system which exists in the BVI.

We have seen what can happen when the current versions of our laws are not readily accessible.

For an international financial and legal centre, the accessibility of the centre’s laws is ‘table stakes’.

Royal Virgin Islands Police Force and Her Majesty’s Prison Service

We express our appreciation today for the continued dedication and hard work of

• the Commissioner and other members of the Royal Virgin Islands Police Force and
• the Superintendent of Prisons and other members of Her Majesty’s Prison Service

for all that they do for the protection of the public, including the judiciary and the courts, and enforcement of the law.

This is the first time we have the opportunity at a special sitting of the Court to welcome, albeit not in person, Commissioner Michael Matthews to the Territory.

We look forward to his successful leadership of the Force

And to a constructive interaction of the Force with the Courts in the best traditions of the English common law system.

Ag. CommissionerJames, please convey these thoughts to Commissioner Mathews and your other senior colleagues on the Force.

Superintendent David Foot has a very forward-looking approach to dealing with persons who have been given the opportunity to reside in his facility.

Simply put, from what I have seen and heard, he is dedicated to saving lives.

Prison Eggs.Does anyone not know about Prison Eggs?

‎Apart from anything else, Prison Eggs are a public reminder that the Prison is not just about incarceration. 

They also remind us that regardless of the prisoners’ state in life, and what he or she may or may not have done, persons incarcerated continue as members of our society and have an innate and inalienable dignity as human beings.

We salute Superintendent Foot and his colleagues for what they are trying to achieve.

Other Organizations

And to the other organizations critical to an effective judicial system:  probation services, social development, health services and the Family Support Network, weexpress our appreciation for their dedication and hard work.

Thank You to Our 2015 - 2016 Acting Justices

Last law year we benefitted from the services of 5 short-term Acting Justices in the Commercial Division of the High Court.

It was a privilege for me to work with, and share ideas with each of them.

Each brought his own special contribution to the Commercial Division, and the jurisdiction as a whole. 

On behalf of all of us, I extend our deep appreciation to:

• Gerard Farara QC
• Edward Bannister QC
• Jules Sher QC
• Bernard Eder QC
• Gerhard Wallbank

As you heard earlier, Justice Wallbank is sitting again this term. Later this term, we will be joined in the Commercial Division by Mr. Malcom Davis-White QC, for the period from the 12^th of October to the 2^nd of December.

The People of the Courts

The Courts, like other organs in civil society, depend on dedicated women and men who work in them – in the Court Registry, sometimes behind the scenes and sometimes in public-facing roles.

We appreciate the dedicated leadership of the Registry by the Registrar, Mrs Erica Smith-Penn, and the Deputy Registrars. 

The court room staff, the court reporters, the people at the counters, the people who deal with court users on the phones – all of them are critical to the functioning of the system. 

On behalf of the judges, the legal practitioners and the public we formally thank them today.

Thank You for Today

I wish to thank all those who have made today’s events a successful and worthwhile experience.

Our thanks to First Assembly of God and Pastor Wayne Hoytefor graciously hosting this morning’s service of divine worship and celebration.

It is a tradition of which we are very appreciative.

We also extend our appreciation to those who attended the service.

The donations collected at the church will go this year to the BVI Red Cross.Most of us know the important work of the Red Cross. It is one of the key organizations in our community.

Monies raised by the Red Cross go, among other things, towards disaster relief – of course the Red Cross was involved in disaster relief for Dominica; purchasing medical equipment; organising a children’s summer camp; defraying the costs of our prostate cancer screening; funding a youth programme; and assisting persons who face significant financial hardship and cannot obtain other assistance.

To the Governor, Premier, members of Cabinet, other members of the House of Assembly, in particular Member Emeritus of the House of Assembly the Honourable Ralph T. O’neal, public officers and all other guestshere today, your presence is what marks this occasion as a special one.

We thank eachof the speakers for their expressions of support and appreciation for the work of our Courts.

Best Wishes for the New Law Year

In closing, on behalf of all of the judges and magistrates, I join the prior speakers in extending best wishes to everyone for the new law year.

I formally declare the Courtsin the Virgin Islands open for business for 2016-2017.