Unit One - Module One - 04 - 05

Caribbean Legal Systems
CARIBBEAN EXAMINATION COUNCIL
CARIBBEAN ADVANCED PROFICIENCY EXAMINATIONS (CAPE)
PUBLIC LAW
UNIT 1
MODULE 1: CARIBBEAN LEGAL SYSTEMS
The following was compiled because students undertaking the CAPE Law Unit One Examination
are in desperate need of a textbook1. Most of the information was culled from Rose-Marie Belle
Antoine’s outstanding work Commonwealth Caribbean Law and Legal Systems. However the
compiler also used other sources which are acknowledged in the footnotes, students are urged
not to ignore them. The compiler paraphrased Antoine’s work so as to tailor the compilation 2 to
the needs of Caribbean Advanced Proficiency Examination level students; the compiler in no way
intended to subject Antoine’s work to derogatory treatment. The following is not the compiler’s
original work.3
DLS (October 2004)
A legal system comprises of “the body of legal rules, legal institutions and
machinery which operate within the particular country or jurisdiction”. 4
1. NATURAL LAW ANDPOSITIVE LAW
Law5:
“There are four popular definitions of Law:
1. the legislative pronouncement of rules to guide behaviour;
2. those rules of conduct put in force by legislative authority or court

decisions, or established by local customs;
3. an institution which is essential to the social nature of man and without

which he would be a very different creature; and
4. the enforceable body of rules that govern society.
1
Please CXC, commission a textbook!
2
The compilation also follows the chronological order of the syllabus, a current copy of which all
students are begged to obtain
3
It follows that students have been provided with the information free of cost
4
Antoine, R. (1999) Commonwealth Caribbean Law and Legal Systems. Great Britain: Cavendish
Publishing Ltd, p 23
5
The notes for topic 1 (i) are taken from materials developed for The Caribbean Examinations
Council (CXC) (Distance Learning programme) with the assistance of the Commonwealth of
Learning (COL) institute. Copyright © 2003 CXC/COL
Montego Bay Community College 1

All of these definitions are relevant to an understanding of “Law” and each

definition can be used depending on the context in which the word is used. For
example … definition #4.
“an enforceable body of rules”
This statement indicates that some rules are enforceable and some are not.
Let us consider then, what is a rule.
Rules are normative. This means that rules set a standard of how things ought to
be, rather than how they are. For example, “no one should use profane
language.” Rules may mandate action, they say something must or must not be
done and there may be a penalty for disobedience if the rule becomes law and is
therefore made enforceable. A good definition of a rule may be the following:
“a general norm mandating or guiding conduct or actions in a given type of

situation.”
(i) nature, origin, role, and functions;
Nature of law
According to Wollheim, “The nature of Law … has long perplexed legal and
political philosophers”… the nature or essence of law may be found in the
definition of law. The nature of law therefore, may be characterized by its rules
that seek to create and maintain order in society. In other words, the nature of
law is to be found in its normative rule-making content.
The law seeks to create and maintain the conduct desired of society. That is why
the law lays down the procedure for doing things and sometimes attaches a
penalty for non-performance of a particular act.
Origin of law
(a) The English Perspective
Before the Norman Conquest, which occurred during the 11th century A.D.,
England did not possess a unified legal system. Different areas of the country
were governed by different systems of law, often adapted from those of the
various invaders who had settled there. Thus, the law of England was
fragmented and varied form place to place. The King had little control over the
country as a whole, and there was no effective government.
When William, the Conqueror gained the English throne in 1066, he established
a strong central government and began, among other things, to standardise the
law. Eventually it was decreed that there would be one law common to all of
England, hence the name ‘common law’.

(b) The Caribbean Perspective - Reception
When the Europeans came to the West Indies they brought with them their laws
which they imposed upon the natives, then the slaves and eventually upon the
indentured servants.
The laws that were known to the native Indians, the Africans and the Indentured
Servants were displaced as the Europeans began to rule them under their
transported legal system that was received into Caribbean territories. For
instance, in Guyana, the Civil Law Act – Cap 6:01 allows for the reception of the
English Common Law in 1917 and the retention of some areas of Roman Dutch
Law. Reception in the territories listed below is governed by:
Antigua: The Supreme Court of Judicature Act, Cap 81
The Bahamas: The Declaratory Act, 1799
Barbados: The Supreme Court of Judicature Act, Cap 117, section 31 and 37
Jamaica: The Interpretation Act, Cap 165, section 37
Trinidad and Tobago: the Supreme Court of Judicature Act, Cap 4:01, section 12
Caribbean territories were ruled at different periods in the region’s history by

different European nations; for example, the Spanish, the French, the Dutch and
the English. Guyana was ruled by the French and the Dutch, then lastly the
English. Trinidad was ruled by the Spanish, then the English and St. Lucia by the
French, then the English. As a consequence, Guyana and St. Lucia have
inherited a hybrid legal system. Guyana has certain aspects of Roman Dutch
Law that is practiced alongside the English Common law and St. Lucia has
retained certain aspects of the French Civil Code that is practiced alongside the
English common law.
Role and function of law

The role and function of law is to bring cohesion to, and maintain order within
societies. William, The Conqueror chose to introduce a single system of law into
England because he sought to achieve unity and cohesion within the legal
system of England, thereby, improving it and rendering it more efficient. The
more advanced and complex a society becomes the greater is the need for laws
that will regulate human behaviour if peace and stability are to be maintained.

The romantic or utopian view of the function of law is that it regulates human
behaviour to achieve a well-ordered and cohesive society. However, the true
function of the law has often been to regulate the activity of society at large in a
manner that produces the effect most desirable for the maintenance of the
prosperity and the continued protection of the ruling classes, administration or
government.
Professor Hart argues:
[that] … the main function of the law is simply to allow human beings to survive in a community …
Each member of society has, more or less, the same physical strength and intelligence, and both
our powers of self-restraint and willingness to help others are limited. We therefore all face the
danger of attack from the others and competition for such resources as are available … The
realisation that we are not safe in the world alone and can only be safe in a community if there
are rules of self restraint, leads to the development of such rules, protecting the property and
person of others. It also leads to the idea that observance of the rules must be guaranteed by
some kind of penalty directed at the rule breaker.
Hart maintains that such rules are the minimum necessary content of law in any
society.
For you to have a complete understanding of this area of your study you should
examine the contents of Commonwealth Caribbean Legal Systems; Rose-Marie
Belle Antoine, (1999) at page 12, in which she posits:
“… mention is hardly ever made of the important immoral function which the law in much of the
history of the Commonwealth Caribbean.”
She continues:
A discussion of the role and functions of law in West Indian society should, therefore begin with
an appraisal of the role and functions of the law and legal systems in instituting and upholding the
systems of slavery and colonialism which existed … throughout the region … Law was thus an
instrument of social control and public order in plantation society … The slave laws were the most
ubiquitous form of public control … Their primary function was to maintain the slave system by
guaranteeing the economic, social, and racial subordination of the Negroes.
The history of the Caribbean islands reflects that slave laws ensured the security
of the plantocracy by ensuring to the slave master an absolute authority over his
slaves. A slave was considered chattel. Thus the 1674 law of Jamaica described
slaves as goods and chattel. Slaves were also referred to with reference to their
collective weight. For example, ‘a ton of slaves’.
Legally, a slave was barred from owning property and a Jamaican law of 1711 excluded
slaves from owning almost anything at all, for example, livestock and important
agricultural products like sugarcane, coffee and cotton
(ii) Theories of law

Concepts of law are essentially the theories of law. In order for you to understand
the different concepts of law, you must first understand the different theories, as

propounded by the different legal philosophers. These different theories govern

different peoples and societies alike. Concepts of law also extend to different
cultural, racial and religious situations. For example, Islamic and Judaic Law. It is
worthy that in Islam, the law becomes the religion and thus, the religion becomes
the law. Two of the most popular theories of law are natural and positive law.
Natural law and Positive law
(a) Natural law
In Calvin Eversley’s article on “Law, Religion and Morality”, at page 4, of the

Guyana Law Review, you may wish to consider the definition of Natural Law, as
posited by the legal philosopher, Lloyd who says that … “natural law is believed
to be a rational foundation for moral judgment”. Thus, according to Eversley,
natural law can be seen as true law that emanates from a divine being.
According to many natural lawyers, natural law is directly connected to, or rather
shaped by, those religious, moral, or ethical considerations which are inherently
apart part of that “right reason in agreement with nature” as formulated by the
early natural philosopher, Cicero.
For the purpose of simplification, natural law is perceived to be that law which is
shaped by a divine being and thus provides the guidelines for proper moral
behaviour to be exhibited and practiced by mankind.
(b) Positive law
Within the theory of positive law is the belief that law has nothing to do with
morals or religion but is shaped by “certain specifically approved, or accepted
procedures for law-making.” According to Eversely; “Kelsen [a positivist] best
epitomises this view in the formulation of his pure theory of law.”
Positive law is the law created by the sovereign and which must be obeyed
even if and when it is unjust or repressive. Also, it is not acceptable for the
citizen to reject or refuse to obey an unjust law so long as it remains in force,
rather it is for the sovereign itself or Parliament to change the unjust law.

2. The Influence of Morality and Religion on Law
Before we can consider law’s relationship with morals, religion and ethics we
have to look more closely at how different schools of Jurisprudence define ‘law’.
According to natural law theorists ‘law’ is “good law”. Good law refers to a
minimum moral or ethical content of law. Cicero6 believed that natural law is
related to the reflex of human beings to resort to an internal source and process
of rationality when a situation demands a resolution.
“Cicero, in defining “true law” as “rights reason in agreement with nature” 7

obviously logically allowed for the possibility that positive or human laws might
not accord with “true law” because such laws might not be based on “right
reason” (or put another way such laws might not be informed by good and
sufficient reasons) consistent with the rationale (or moral) order of nature.” 8
Natural law is viewed as the foundation of moral judgment. Because the rules
that govern our good conduct are connected with basic truths about human
nature. For example most people can kill a kitten with no effort because we are
stronger – but most of us don’t. The reason is we know that such an act would be
morally depraved. Views about the exact nature of natural law have varied over
the ages, but there has been one constant. That is, there are some principles
6
Cicero, Marcus Tullius (106 – 43 BC) Roman orator and statesman. He was one of the most
influential authors in Latin literature
7
Cicero’s “De Re Publica” as quoted in Freeman’s “Lloyds Introduction to Jurisprudence” (6 th ed.,
1994) pp130 -131
8
Eversley, C. Law Religion and Morality [1999] 1 Guy L. R. 3, p 4

which are governed by the nature of the universe and which are discernable by
reason.
“Natural lawyers accept that natural law principles do not always have the effect
that they would like them to have but they argue that the principles remain true
even if they are ignored, misunderstood, abused in practice, or defied in practical
thinking. An appropriate analogy are mathematical axioms which hold good even
when misunderstood or undiscovered.”9 Therefore law is shaped by religious,
moral or ethical considerations, which are apart of ‘the reason that is in
accordance with nature’.
How do we know if a particular human or positive law is true natural law? For
instance in the abortion debate, the right to life and the right to privacy or
freedom of choice, can both be considered as natural law rights. Eversely
proposes that the right answer is consistent with the “right reason in agreement
with nature”10, must lie in proper limitations of one or both of these two great
natural law rights.”11
What does ‘right reason in agreement with nature’ mean? As far as religion is
concerned it seems that natural lawyers especially those who believe in the
divine, believe that there is a pre-existing moral order that governs rationality and
materiality.
The positivist approach

The Positivist School of law defines ‘law’ without reference to subjective
considerations such as morals, ideology, religion etc. So law is defined with
regard to how it was formulated. That is, by conforming to approved and specific
law making procedure.
“It is also hereby submitted that these specifically approved or accepted

procedure for lawmaking must also include logically prior established rules which
identify and legitimise the lawmaker or sovereign. If the latter were not the case,
then the edict of the despot or dictator would, from this positivist perspective, be
on the same footing as positivist laws validly enacted by a lawful sovereign or
democratically elected Parliament.” 12
The essence of the positivist approach refers to law that is not informed by what
some or even most people consider unreligious, unjust or immoral. In the view of
the positivist scholar ‘law’ is law simply “… because a legitimate sovereign or
lawmaker posited or put forth these rules in accordance with legally approved
lawmaking procedures.”13 This does not mean that positivists do not think of
9
Freeman, M. (Eds.). (1994) Lloyds Introduction to Jurisprudence 6 TH Edition. Great Britain:
Sweet & Maxwell, p 80
10
Ibid Footnote 4 (Cicero)
11
Op cit, Eversley, p 4
12
13
Ibid

morality religion and justice, they do, but in other non-legal areas. It is just that
positivists do not think elements such as morality should not define law because
then it loses its’ clarity and definiteness.
“… it seems clear that the factor which determines whether one believes that
there is a necessary connection between law and morals turns upon how one
chooses to define law. This choice in turn is not motivated by moral or non-legal
considerations.”14 Eversley defines law from a natural law perspective because
he rejects laws, which is evil or unjust by reasonable standards of decency. 15
Law’s normativity
Law’s inherent normativity refers to an alleged conceptual connection between
‘legal duty’ and ‘ought’. If you say there is a legal duty to do something, it is part
of the meaning of what you say that, in some sense of ‘ought’ the ‘thing’ ought to
be done.”16
“ The point being made here is that the argument that there exists a moral duty to
obey law, however described, is further reinforced by the concession of natural
lawyers that even human laws which contravene principles of natural law ought
to be obeyed ‘to avoid scandal’. Thus there must be something in the nature of
law which would compel obedience even if terms might be positively unjust.” 17
The relationship of religion to law and morality

“There are some who see religion, law and morality, as one indivisible whole with
religion, where it represents a true expression of divine will, being the foundation
of them all. To the natural lawyer who believes that divine will is the basis of all
good law (natural or positive), there exists no validly logical distinction between
religion, on the one hand, and law and morality on the other hand. Legal
Positivism admits of no such logical connection, either in a causative or
imputative sense. Religion is an irrelevant criterion to the positivist lawyer when it
comes to defining law.”18
It is only since modern times that men have regarded law as man-made and
therefore to be judges on human terms. Before then law, morality and religion
formed a coherent whole.
Islamic jurisprudence
McCoubrey and White have stated, “… the matter of divine origin is fundamental
to Islamic jurisprudence.”19 Thus, the authority of an Islamic Government to make
laws of governance “can only be legitimately be found upon the holy law.” 20 This
means that any “laws” enacted by an Islamic Government which conflict with
14
Ibid
15
Op cit, Eversley, 19
16
Harris, Legal Philosophies, (2nd ed, 1997) p 523
17
18
19
Textbook on Jurisprudence (2nd ed, 1996) p 105
20
Ibid

Islamic law are considered to be “irreligious” and devoid of legitimacy. 21

Nonetheless, any parallel with natural law theory breaks down at this point since
human laws in the Islamic context are not evaluated or tested by reference to the
moral criteria inherent in Islamic law for the purpose of determining their validity
and entitlement to obedience.22 On this issue, McCoubrey and White opine that:
“(t)he moral criteria which are an essential part of Islamic Jurisprudence are not
used as means of evaluation of positive legal norms, because from s strict point
of view ‘legislation’ has no authority independent of the shariah in the first
place.”23
A law, which contravenes Islamic law, is not law because it has no legitimate
moral authority.
Relationship of universal, morality and differing religions

“The question posed here is a common or universal morality which pre-exists all
religions? In essence, this mode is inherent in natural law theory which posits the
view of a universal moral order governing all mankind. Implicit in this claim that
all mankind is governed by this universal order is the logical inference that
religious barriers are transcended by a common allegiance to a certain core of
universal norms or moral values. For instance, all legal systems, irrespective of
religious persuasions, embrace some notion of respect for human life. More
over, it is clear that the moral principle proclaimed through Moses in the Ten
Commandments find expression in various forms in differing legal and religious
systems.”24
Free will in relation to law, religion and morality

“The genius of the concepts of free will lies in its ability to find expression and
continuity in widely varying legal and religious systems. That God gave us free
will or the will to be free seems to me to be a fundamental natural law principle. It
finds its best expression in the highest ideals in democracy; and even in
totalitarian systems this free will, though suppressed for a time, eventually bursts
forth as people exercise their innate or inalienable right to freely choose how they
live and are governed. This principle of free will is therefore both universal and
rational. It is universal because it is inherently recognised and accepted by all
men everywhere. I know of no man who truly desires not to have the right to be
free. It is rational because no truly rational human being desires not to be free of
oppression or even benevolent governance. We loathe the former and suffer the
latter as a necessary evil.”25
Conclusion
21
Ibid, p 107
22
Ibid
23
Op cit, Eversely, pp 29 - 30
24
Ibid, p 34
25

“It is clear from the foregoing discussion that, certainly in so far as the natural
lawyer is concerned, law is not just a bloodless category, but is rather intimately
connected to issues of religion, morality and other non-legal phenomena.” 26
3. Concepts of the phrase ‘sources of law’:
(i) focus on the legal sources of law, that is, the Constitution, legislation
– primary and subsidiary – and interpretation thereon by the Courts;
Introduction to Sources of Law
Source of law means the origin or basis of law. In the Commonwealth Caribbean,
the law and legal systems originate from the United Kingdom (UK) and its
common law and legal heritage. The basis of law in the English Caribbean is the
English common law. However, “the origin of law and legal systems in the
Commonwealth Caribbean is nor only that which emanated from the UK, but also
includes law and legal systems actually created within the region.” 27
In any particular legal system, there are several types of sources. These include:
(a) literary sources; CONSTITUTION
(b) legal sources; legislation (primary and subsidiary)
(c) historical sources; common law, judicial precedent
(d) equity
(e) customs and conventions
Of all three, legal sources are studied more closely, because they shape and
inform the particular legal system more than other sources of law.
Literary sources of law

The term ‘literary sources of law’ describes the location of the law. Examples of
this source of law are:
i. books;
ii. legal treaties;
iii. law reports; or
iv. legislation.
26
Ibid, p 38
27
Op cit, Antoine, p 73

Literary sources of law tell us what the law is. They do not confer legitimacy on
rules of conduct or social arrangements.
Historical sources of law

“’Historical sources of law’ refers to the causative factors behind a rule of law, its
historical origin and development”.28 For example the law of the Commonwealth
Caribbean is derived directly from our colonial past. The source of our law is the
process under colonisation that led to English Statute, the common law and
equity being transplanted to the Caribbean under the doctrine of the reception of
law. In England, the source of that country’s law is its’ customs.
It may be argued, “...that the historical source of law is particularly important in

the Commonwealth Caribbean context, for our legal sources are intimately linked
with the historical experience of colonisation and plantation societies.” 29
There is a very strong direct interrelationship between the Commonwealth

Caribbean legal sources and our historical sources. The attitude of the judiciary
and legislature, the character and operation of legal institutions all still reflect the
colonial experience. For example, colonial Acts still remain on the statute books –
take for instance the vagrancy law.
Legal sources*
Legal sources of law form the basis of the law’s validity. In other words legal
sources give law its authority. “The identification of a legal source occurs after the
process by which rules of conduct acquire the character of law, becoming
objectively definite, uniform and compulsory.” 30
The following are legal sources of law in the Commonwealth Caribbean:
(a) the constitution;
(b) legislation;
(c) the common law and judicial precedent;
(d) custom;
(e) international law and the laws of regional treaties; and
(f) equity.
In the Commonwealth Caribbean international law was not traditionally a source

of law. But it is becoming more important as a source which gives laws in the
28
29
Ibid
30
* Students should ensure that they come to grips with this topic.

region’s jurisdictions validity and authority. This is particularly relevant to labour

law and the law of human rights.
The Written Constitution as a Legal Source
The importance of the constitution

The written constitution is thought to be the most important legal source in the
Commonwealth Caribbean. There are two reasons for this.
1. The constitution represents an indigenous source of law. It symbolises the

region’s break from colonialism, for the constitutions of the Caribbean
were written when we were no longer colonies. It is therefore a
manifestation of the political will of our people.
2. The constitution is also a very important legal source because it adheres

to the theory of constitutional supremacy in the region. Before the theory
of constitutional supremacy, the Commonwealth Caribbean observed the
doctrine of Parliamentary sovereignty. This is also a doctrine characteristic
of the UK. “While in form the constitution is an example of legislation,
another legal source, it must be distinguished from ordinary legislation
because of its’ important philosophical orientation and authority.
The constitution can be defined as a body of law containing the rules which
determine the direction of the State, including the manner in which the State is
organised and the body of fundamental principles according to which the State is
governed”. 31 The constitution legitimises law. It is the base from which the rule of
law originates and derives its authority or validity. All norms of society stem from
the constitution. The constitution may be viewed as the parent law, for all other
laws are measured against it – it is the supreme law of the land. In Collymore v.
AG32 it was said:33
No one, not even Parliament can disobey the Constitution with impunity.
Therefore the constitution is also a source of power, because it tells us (citizens)

what our rights are, it also molds the shape of both the legal system and the
political system. For example the principle of democracy can be found in the
constitutions of democratic countries.
“The constitution lays down mandatory procedures for government, is the

foundation for judicial review, states basic human rights and avenues for redress
of violations of such rights and promulgates new remedies.” 34 The following is a
list of other functions of the constitution in the Commonwealth Caribbean:
31
32
[1967] 12 WIR 5
33
Ibid, p 6
34

1. State institutions – their creation and establishment as well as the

distribution of the function of the State;
2. Grants authority the make laws;
3. Defines State territory; and
4. Gives the State legitimacy through the existence of an independent body

of laws, which regulate the State.
But the most popular and important function of the constitution is its’ role in
defining and protecting fundamental human rights.
The constitution also acts as a yardstick to measure the validity and authority of
laws in general. It also supervises the use of power or authority in the State.
It is worth noting that a constitution can be unwritten as is the case in England.

But this state of affairs is not without problems. This aside, it should be noted that
Britain’s constitution is different, because in Britain, Parliament is supreme. It is
does not conform to the ideal of constitutional supremacy as Commonwealth
Caribbean countries do. For instance the preamble of the Constitution of
Barbados states;
The Constitution is the supreme law of Barbados and, subject to the provisions of this
constitution, if any other law is inconsistent with this Constitution, this Constitution shall
prevail and the other law shall, to the extent of the inconsistency be void.
The sentiment is the same in the Jamaican Constitution, which states:
Subject to the provisions of sections 49 and 50 of the Constitution, if nay other law is in
consistent with the Constitution, this Constitution shall prevail and the other law shall, to
the extent of the inconsistency, be void.35
Form and structure of the constitution

“The typical constitution in the region contains the following sections:
(a) A preamble (except Jamaica’s);
(b) chapters on citizenship;
(c) a section on fundamental rights and freedoms, called a Bill of Rights;
(d) chapters defining the powers of the Head of State and Parliament;
(e) chapters defining the powers and establishment of the executive and
judicature;
35
Second Schedule Chapter 1 - Preliminary s.2(2)

(f) chapters establishing and defining the role and functions of the Public
Service and Judicial Commissions;
(g) chapters on finance;
(h) in addition, there is a statutory formula giving Parliament power ‘to make
laws for peace, order and good government’.” 36
The protection of fundamental rights – a dynamic legal source?

International sources of law have had an impact on the legal systems of the
Commonwealth Caribbean. This is evident in the Bill of Rights of the region’s
institutions. They reflect international concerns for fundamental human rights. For
example the rights accorded are all embodied in international instruments such
as the European Convention on Human Rights and the American Convention on
Human Rights.
Has the written constitutions of the Commonwealth Caribbean created new rights
or have they codified rights that already existed in the common law? Some
people feel that the constitutions merely codify existing common law. One reason
for this is the existence of the phenomenon of ‘saving law clauses’ in some of the
constitutions such as Jamaica’s. These clauses preserve existing law or pre-
independence common law. But doing this jeopardises the human rights
provisions of the constitution.
For example in Nasralla v. DPP37, “the Privy Council declared that the
fundamental rights which were enshrined in the new Jamaican Constitution were
‘already secured to the people of Jamaica’.38 The court found that the rights and
freedoms found in the Constitution were subject to ‘existing law’ or saved
common law. This meant that the constitutional rights protected were only those,
which existed before the advent of the written Constitution.
This pitted common law against the written constitutional guarantees of

fundamental rights. The courts have often written judgments favouring common
law and restricting the constitution. Take for instance the case of
Robinson v. R39. The opinion from Jamaica emanated from the United Nations
Human Rights Committee. The case illustrated the conflict between existing law
and our Bill of Rights. The plaintiff lost his case all the way up to the Privy
Council. “The case involved an argument that his right to a fair hearing was
violated when his murder trial was forced to proceed without an attorney. The
United Nations Human Rights Committee, in rejecting a restrictive view of the
Constitution, found that this was a violation of his rights to a fair hearing, although
the common law position is that there is no right to legal counsel. Although the
36
37
[1967] 2 AC 238, PC
38
p 247, per Lord Devlin
39
United Nations Human Rights Committee Communications No. 223/1987, decided 1989

case did not specifically refer to a saving law clause, the underlying issue, that is
the creation of new constitutional rights, not hitherto contained under the
common law, was addressed.”40
There were similar arguments in Collymore v. AG41. Wooding CJ did state that
the constitution was supreme law, but he still found that the constitutional
provisions protecting trade union rights 42 did not include the right to strike. This
was justified on the grounds that at common law, there was no right to strike.
Consequently Commonwealth Caribbean constitutions have been interpreted as

codifying existing common law. It is not viewed as creating new legal rights. The
constitutions have been restricted in other ways.
For instance the introductory clauses of constitutions have given rise to litigation.
Introductory clauses declare rights such as freedom from discrimination on the
grounds of sex. The problem arises because the constitution then goes on to
guarantee redress for violations under other sections. It has been argued that
only those rights, which are specifically mentioned, should be protected.
Therefore if the right is only mentioned in the introductory clause, it may be
interpreted as non-justiciable or non-enforceable. For instance “in Girard and the
St. Lucia Teachers Union v. AG43, the court found that no redress was available
for a lack of equality on the ground of sex as it was not mentioned, except in the
introductory clause.”44
But it seems as though Caribbean courts are moving away from this restrictive
attitude to the potential of the constitution, in order to create and protect new
rights. Take for example the case of Maharaj v. AG of Trinidad and Tobago45. In
this case “a new remedy in damages for violations of human rights was held to
have been created by the constitution”. 46 Again in Thornhill v. AG47, the
constitutional right to retain council was successfully promulgated. And very
recently in 1991, The Constitution of Trinidad and Tobago was generously
interpreted to uphold the rights to retain the attorney of one’s choice without
delay.48
“The grounding principle in these pro-right cases is that a constitution is a unique

instrument which must be interpreted in light of the ideals and principles which
ground it. The courts should thus give life to the meaning of the constitution by
interpreting it in a broad and purposive manner. The underlying presumption of
40
41
Ibid, p 12
42
The rights to form and join a trade union and freedom of assembly.
43
Unreported Judgment N o 371 of 1985, decided 17 December 1986, St. Lucia
44
45
[1978] 2 All ER 670
46
47
[1981] AC 61, PC
48
[1981] AC 61,

such instruments is that the State, through its legislature, intends to secure the
broadest spectrum of rights to its citizens.”49
The interpretation of the Thornhill case was very purposive. In Ministry of Home
Affairs v. Fisher50 the need for purpose and generous interpretation was
supported. It is one of the reasons therefore that Pratt and Morgan51 is so
famous. The case is an illustration of the generous interpretation of a
constitution. “The general constitutional protection against cruel and inhuman
punishment found in all Commonwealth Caribbean constitutions was interpreted
to include the situation where a convicted person on death row suffered undue
delay”.52
Constitutions have an evolutionary and a norm-building character. This is evident

in the case of Hobbs et al v. R53. “Here, the Court of Appeal spoke of the ‘evolving
standards of decency’ and the ‘new sensitivities which emerge as civilization
advances’ which should be reflected in the interpretation of written constitutions.
At the base of the argument is the fact that the constitution as a legal source is
not static, but must constantly evolve so as to measure up to appropriate
standards of human rights and other societal values. It is, as such, a dynamic
and flexible legal source.”54
This case is revolutionary, because the Privy Council overruled a previous

decision55 and a series of related decisions, and affirmed the dynamism of the
written constitution as a source of law.
“There has, therefore, been a steady progression toward a development of a

more purposive construction of Commonwealth Caribbean constitutions in
relation to the Bill of Rights. What be called the modern principle of constitutional
interpretation of human rights provisions is that a liberal interpretative technique
which encompasses the purposes and ideals of the constitutional instrument
should be employed. This interpretative technique is in line with those from
international human rights conventions.
Commonwealth Caribbean courts seem poised to make the constitutional

protection of human rights even more elastic, even in contentious areas, such as
capital punishment. In Fisher v. AG of the Bahamas56, Lord Steyn noted that the
death row litigation was ‘in transition’, and that just as the principle on undue
49
50
[1980] AC 319
51
[1993] 43 WIR 340
52
53
[1994] CLB 45
54
55
Riley v. AG [1983] AC 719, PC
56
(Unreported PC Appeal No 53 of 1997, decided 12 December 1997, the Bahamas)

delay had evolved to find such delays unconstitutional, it might further expand to
include pre-trial delay.”57
Separation of powers
The principle of the separation of powers is embodied in the constitution. The
separation of powers is important to the administration of justice in the legal
system. It secures the independence of judges and provides that they are
impartial and separate from political interference from the political arm of the
government, so as to administer justice impartially.
Only the judiciary and the courts can exercise the judicial function. The cases of
Farrell v. AG58 and Hinds v. R59, confirm this. In Hinds it was held that an attempt
to establish a Gun Court, without it being properly constituted as a court of law,
was unconstitutional. It was unconstitutional because only the judiciary and the
courts have the right to exercise the judicial function.
In Hinds the Jamaican Parliament had wanted to establish a Gun Court. They
wanted to give resident magistrates powers of jurisdiction, which the constitution
reserves for Supreme Court Judges. The power of sentence was to be given to a
review board instead of a court.
The Court of Appeal decision was overturned by the Privy Council who held, that
the creation of a Gun Court was a violation of the separation of powers doctrine
enshrined in the constitution. The Privy Council also pointed out that
Commonwealth Caribbean constitutions:
… embody what is in substance an agreement reached between representatives of the

various shades of political opinion in the State, as to the structure and organisation of
government through which the plentitude of the sovereign power of the State is to be
exercised in the future.60
The Privy Council also found that new constitutions are evolutionary, not
revolutionary. In other words they are grounded in basic concepts of the common
law, separation of powers and the independence of judiciary, etc
Constitutional provisions secure security of tenure for judges. Independence of

the judiciary is further ensured because the Judicial Commission, which was
established for that reason, handles appointment and removal of judges.
“Bills of Rights in the Commonwealth Caribbean constitution thus ‘impose a fetter

on the exercise by the legislature, executive and judiciary of the plentitude of
their respective powers’. This is the ‘Westminster model’ of government.” 61
57
58
(1979) 27 WIR 377
59
[1976] 1 All ER 353; [1977] AC 195
60
[1977] AC 195, p 212
61

Entrenchment of constitutional provisions

The practical entrenchment is that certain constitutional provisions cannot be
altered except by referendum or by a special majority of Parliament. All the
constitutions of the Commonwealth Caribbean contain provisions for
entrenchment.
This shows that the constitution is in a different and more precious category than
that of ordinary legislation. Entrenchment operates to prevent Parliament from
interfering with fundamental constitutional rights. The case of Smith et al v.
Bahamas Hotel Union62 explains:
Parliament cannot by legislation interfere so as to affect the fundamental rights

entrenched by the Constitution without complying with the requirement of the
Constitution …
The court in Hinds shared the same sentiments, adding that entrenchment
protected provisions, which were important safeguards, ensuring that they would
not be altered “… without mature consideration by the Parliament and the
consent of a larger proportion of its members than the bare majority required for
ordinary laws."
Measuring the validity of other laws and legal sources

Commonwealth Caribbean constitutions also contribute to the development law
by testing the validity of other law and legal sources. It therefore be said to be the
basis of the rule of law. The testing and measuring of other laws and legal
sources is carried out by judicial review.
Judicial review determines the validity of ordinary legislation. Legislation is

measured against constitutional norms. If the legislation offends the norms it will
be declared unconstitutional or ultra vires.
If legislation conforms to the constitution it is said to be intra vires. If legislation is

ultra vires it will be declared null and void and will be struck from the books. Thus
as Antoine asserts, “the constitution presents a formidable challenge to
legislation.”63
For example in Collymore, the basis of the challenge was that the Industrial
Stabilisation Act was ultra vires the Trinidad and Tobago Constitution because it
violated the right to strike. However they were unsuccessful.
The validation of other legal sources

“The constitution also validates other legal sources in a sense other than the
ultra vires concept discussed above. Since it gives Parliament and the legislature
62
Suit No 105 of 1985, High Court, the Bahamas
63

the authority to make law, legislation ultimately owes its legitimacy to the
constitution. Similarly, the power given to the State to sign international treaties is
found in the constitution, hence the legal source of international law can be said
to be validated by the constitution. Even the authority given to the common law in
independent Commonwealth Caribbean nations can be traced to the constitution
as it saves the common law, declaring it to be the applicable law in the legal
system. The constitution is thus of prime importance in defining and shaping
legal sources and ultimately, the legal system in the region.” 64
Economic, social and cultural rights

The extent to which rights are categorised as economic, social or cultural rights
(ECONSOC) are justiciable or enforceable is an area of controversy in the area
of constitutional law.
These rights maybe enshrined in a constitution or international human rights

instrument, for instance the right to form a trade union. These rights relate to the
collective and this makes them unique, because they are not laws that affect the
individual only. ECONSOC rights have an economic, social and cultural impact,
examples of similar rights is the right to education and to self-determination.
The justiciability of these rights have been inconsistently applied in the

Caribbean. In AG v. Mohammed Ali65 it was held that rights such as the trade
unions right to consultation could be enforced. But generally these rights are
difficult to enforce in the Caribbean. This is particularly the case in labour law.
The reason for this is that labour law tends to be formulated in the collective, for
example the right to pay, the right to collective bargaining etc. In Jamaica, the
right to collective bargaining was denied.66
Legislation as a Source of Law
The importance of legislation

This source of law is important in the Commonwealth Caribbean. It is becoming
even more important because law is being codified more and more in the
common law world – including the Caribbean.
Although the constitution is considered as a separate source of law it is strictly

speaking part of the legislative process in the Commonwealth Caribbean. But it is
so significant it is discussed separately. Legislation is a legal source that has its
roots in the past. It is ancient; it is older than Western civilization 67.
The nature and role of legislation
64
65
[1989] LRC (Const) 474
66
Banton v. Alcoa Mineral of Jamaica (1971) 17 WIR 275
67
Antoine cites the Code of Manu which predates the Roman and Greek civilizations. The Code
of Manu governs the social and religious laws of Hinduism.

Legislation is defined as “… the body of legal rules, which emanates from the
deliberate law making function of the legitimate authority of the state.” 68
Legislation is therefore deliberately made. This is the reason it is different from
custom. Custom simply grows or develops through time, it has no draftsman.
Also legislation is written, custom subsists in conduct.
Parliament has the authority to draft legislation. This authority is conferred by the
constitution. Parliament can also delegate this responsibility to other
functionaries and authorities. The doctrine of separation of powers also
authorises governments to make legislation.
Thus the lawmaking pattern seems to be the following. Equity and common law
produces legal principles. In turn, those legal principles are embodied in detail in
statutes. Therefore as far as codification is concerned common law has
contributed greatly to its development. It has also contributed to the definition of
the jurisdiction of the courts.
The doctrine of precedents limits common law and equity. This is the reason
legislation differs from them. Legislation is creative. Common law and equity
have no choice but to build on existing legal principles and by manipulating case
law. Legislation binds itself to radical and new principles of law; it does not have
to refer to pre-existing principles. Also unlike common law and equity it can be
repealed outright. Legislation is therefore the most efficient and the best tool for
law reform. “For this reason it may be, more convenient for Commonwealth
Caribbean jurisdictions to turn to legislation rather than the common law and
precedent to develop a more Caribbean law.”69
Change and innovation in countries are wrought by legislation. We will see that in
the future as the Commonwealth Caribbean moves farther away from the English
Legal System. It will have to be used to “reverse the alienation of English laws
and customs to allow the law to reflect the goals and aspirations of West Indian
society.”70
Legislation is its own legal source. This is one other way it is different from other
sources. For example common law and equity depend on the legal source of
precedents, but legislation looks inward to itself – it does not need to refer to
other legal sources. Legislation need only be interpreted under the rules of
statutory interpretation.
However in practice legislation sometimes feeds on case law. Because it is not

always easy to determine what a statute means. In instances case law and
precedent are used to interpret and determine legislation.
68
69
70
Ibid

Functions of legislation
The function of legislation is “to carry out law reform, and create, alter or revoke
law in order to fulfill the intention of the legislative body and ultimately the
people”71. Legislation also fills the gaps of other sources of law. There are eight
other functions.
1. Revision This refers to the revision of the common law. The common law
may have to be revised if it becomes stale or it cannot be adapted to a particular
situation or if the decision was unpopular. Therefore revision overrides the
doctrine of precedent, it creates change. Which is in keeping with what the law
should be. Law should not stagnant; it should be a tool for social progress
changing to reflect social needs. But judges do not have the power to reform
even when they are supported by public opinion. They cannot create law they
can only illuminate it.
2. Consolidation of enactments In certain areas of jurisprudence law has

developed piecemeal, legislation is used to clarify and simplify the status of the
law. The substance of the law is not altered, only the form. There are three
methods of consolidation. There are thee methods of consolidation:
(i) re-enactment (or pure consolidation);
(ii) by making amendments; and
(iii) by making minor improvements and correction.
3. Codification When case law is made into statute it is called codification. It

is similar to consolidation except consolidation deals with statutes. But like
consolidation it simplifies and clarifies the law. When laws are consolidated and
codified, it is called a code. Currently draftsmen are trying to codify labour laws of
the Commonwealth Caribbean. Antoine is of the opinion that this type of law can
be viewed as a more elevated type of legislation 72.
4. Collection of revenue or monetary control The sole purpose of some

legislation is concerned with fiscal matters such as revenue collection. In
Jamaica an example would be the General Consumption Tax Act (1991).
5. Implementation of treaties – incorporation When a country becomes a

signatory to a treaty, the laws of the country are revised in order to conform with
the treaty, because as a signatory the country has undertaken to do so. The
process of making treaty law enforceable under local law is called ‘incorporation’.
This can be done by passing legislation that mirrors the treaty or parts of it. So
here the function of legislation is to make international law apart of domestic law.
If a country incorporates treaties into domestic law because the are a signatory,
71
72

that country has to legislate to enforce the decisions of the international courts.
Take for instance the Money Laundering Act (1998) (Jamaica) and the Money
Laundering (Proceeds of Crime) Act (1995) (Bahamas) are two examples of
several countries in the region that have incorporated international money
laundering agreements into domestic law.
6. Social legislation This is legislation which is concerned with the day to day
running of the country. Legislation like this is usually delegated by Parliament.
They also gibe them power to make regulations. An example is immigration
regulations.
7. Public policy Parliament can legislate on State policy that is the public
interest. The State policy may be in response to public demand or it can simply
be an intention of the State to move in a new direction.
8. Response to pressure groups Sometimes the impetus behind a change in law

is generated by a pressure group. Change is more efficiently effected by
legislation in response to these groups. For example human rights groups.
Types of legislation
There three main types of legislation:
1. Acts of Parliament73 (or statute);
2. delegated legislation; and
3. autonomic legislation.
There are also special forms of legislation known as Orders in Council.
Orders in Council from the prerogative

“Orders in Council are made under the prerogative with the advice of the Privy
Council.”74 The prerogative is exercised by the Crown or the Head of State. In the
Commonwealth Caribbean the Head of State is the Queen 75, the Governor
General is her representative. This instrument is hardly used. It is mainly used in
relation to the armed forces, the civil service and in states of emergency.
Consequently they are not a viable option to Acts of Parliament. Orders in
Council are not as scrutinised as other types of legislation.
Orders in Council are made under the prerogative power, but they can also be
made under the delegated law function. These two types must be distinguished.
Orders made under the delegated function are similar to subsidiary legislation,
but they are to be considered as a more dignified form.
73
Before independence these were called Ordinances
74
75
Except in Guyana and Trinidad and Tobago, which replaced the Queen as Head of State. They
now have Presidents and are Republics

Acts of Parliament
Acts of Parliament are created by Parliament. They are created by its’ ‘legislative
arm’ according to the doctrine of the separation of powers. There are two kinds of
parliamentary Acts.
1. Private Acts - this kind of Act only affects the proposer or the
sponsor of the Act. The proposer or sponsor may be a company,
corporation or private organisation.
2. Public Acts - these Acts affect the entire nation. Representatives in

Parliament on behalf of the people propose them.
Legislation, which is passed in conformity with international treaties or

agreements, is also public legislation.
Statutes or Acts of Parliament consist of the:
1. ‘long title’ – this is the Act’s official name. The content and aims of the
legislation will be apparent from the aim.
2. ‘short title’
3. date of assent – does not necessarily have to be the date when the statue
comes into force. It is the date when the Head of State approved it. In our
case, that would be the Governor General.
4. words of enactment – these will simply be ‘be it enacted …’.
The Upper and Lower Houses must discuss proposed public legislation. That is
the Senate and the Cabinet must have a Parliamentary debate. Then there will
be a first, second and third reading of the Bill.
First reading – announces the title of the Bill;
Second reading – the Bill is debated; and
Third reading – the Bill is passed.
Bills are usually introduced in the Upper House, government usually introduces
them, but any Member of Parliament can introduce one.
Delegated or subsidiary legislation

Delegated or subsidiary legislation is legislation created by subordinate or
statutory bodies. These bodies have the power to do so because they have been
given this power by Parliament. In other words Parliament has delegated power

to them. They are given wide discretion to formulate the details of legislation. But
only Parliament has the authority to create the substance of legislation.
Ultimately, it is Parliament’s responsibility to create law. Bodies that make

subsidiary legislation (statutory bodies) do not have complete authority. Complete
authority means, the authority to create legal policy. Consequently subsidiary
legislation is subject to more scrutiny by Parliament and the courts. So Acts of
Parliament (or statutes) are two different creatures. But they are both are both
legal sources, both have force of law and legal authority. Bylaws and regulations
are the main types of delegated legislation.
Regulations or orders
Government departments create regulations; they are also called rules or orders.
It is the most popular form of delegated legislation. They are often statutory
instruments which are quoted by year and number as well as a title, for instance
SI 1998/34B The Weight & Measurement (Conversion of Unit Measurement)
Order.
Bylaws
Bylaws are not statutory instruments unless the enabling parent Act declares
them to be. They therefore only bind those who come within the restricted scope.
The scope of bylaws is restricted because they pertain to the local jurisdictions of
the body that made them. Bylaws are made by governmental authorities
subordinate to Parliament. Or example local authorities or independent statutory
corporations that regulate administer or manage certain districts, undertakings,
property etc.
Functions of delegated legislation

Legislation is delegated for administrative efficiency.
1. Speed and efficiency – Parliamentary procedure for passing law is lengthy.

Plus they have to make time to debate it. In contrast delegated legislation in
contrast is speedy.
2. Technicality – the subject may need expert knowledge.
3. Special knowledge – creating the legislation may also need specific or local
knowledge from experts or from people of a particular location.
4. Flexibility – delegated legislation can be revoked or amended easily.
5. Bulk – it is better to put the details of the law in delegated legislation. Because
of Acts of Parliament are primarily for public consumption. The details of the Acts

which are embodied in delegated legislation are usually only used by subsidiary
bodies or bureaucrats.
6. Future developments – it is easier to add details to delegated legislation in the

future than it is with Parliamentary Acts. Consequently the law will be better able
to keep up with developments.
Autonomic legislation
This is a special type of delegated legislation. Autonomous legislative bodies
such as churches, Chambers of Commerce and The Bar Council, make
autonomic legislation. These types of delegated legislation in limited cases apply
to the public but it is meant more often for its own members.
Autonomic legislation is however subject to judicial control under administrative

law, for example Gatherer v. Gomez (1992) 41 WIR 68. The Anglican Church Act
established Diocesan Synod and gives it power to make regulations etc. for the
good government of the Church (s. 24). Under the Act the Synod retired
Reverend Gatherer when he turned sixty-five. The Privy Council struck down this
Regulation because it had not been published in the Gazette. It is required by
s. 15 of the Interpretation Act (1968) that an Act or Regulation be published (in
the Gazette) before it comes into operation.
Controlling Acts of Parliament
In the Commonwealth Caribbean, Acts of Parliament must be measured against
the constitution whish is supreme. Therefore under the principle of judicial review,
Acts of Parliament are subject to judicial scrutiny. This means courts examine the
legislation to see whether it is in accordance with the principles of the constitution
or whether it is ultra vires.
Parliamentary debates are also an important control as statutes are also an

important control as statutes can either be amended or rejected. By participating
in public debate ordinary citizens can participate in the process.
Parliamentary control of delegated legislation

The ultimate responsibility for the creation of legislation lies with Parliament.
Therefore they must supervise and scrutinise delegated legislation. This
responsibility is critical, Parliament is an elected representative government, they
are supposed to represent the people and must void violating this duty. They
therefore monitor delegated legislation in four ways.
1. Laying - the document is presented to Parliament, approval is implied.
2. Laying subject to affirmative resolution – after laying an affirmative vote

must be obtained so that the legislation is passed.

3. Laying subject to negative resolution - legislation is laid before Parliament

for a specified time, if there are no objections it is passed. It must be laid
in a specified period or it will become void.
4. Publication - before legislation becomes law it must be published, it will

usually be published in the Government Gazette.
Parliamentary control may also be subject to judicial control.
Judicial control of delegated legislation

The main concern of the courts in relation to delegated legislation is that
delegated power is used appropriately. The court has to ensure that the body, to
which power is delegated, does not act with more power than it has.
Administrative bodies acquire decision-making power when Parliament delegates

legislation creation to them. This decision-making power is discretionary. If the
body acts beyond this discretionary power, the courts will view the body’s actions
so that a remedy can be offered to members of the public who have been
affected. When an administrative body acts beyond its power, this wrongdoing is
described as ultra vires. When the courts review the body’s actions that process
is called judicial review. The courts are able to carry out judicial review because it
has an inherent jurisdiction to supervise subordinate decision-making bodies.
The fundamental role of the court is to uphold rule of law and justice, scrutinising
the use of delegated Parliamentary power is therefore in keeping with this
function.
The administrative law principle of judicial review is embodied in the constitution

of the Commonwealth Caribbean. Therefore it is important to us. Barbados has
actually codified the principles of judicial review in the Administrative Justice Act
(1980).
The legislative process of delegated legislation can be controlled at two stages.

The:
(i) pre-emergent stage; and
(ii) post-emergent stage.
At the pre-emergent stage the courts look at procedure, which should be carried
out before the legislation comes into effect. For example pre-conditions such as
laying. At the emergent control level test whether the legislation is valid after it
comes into effect. They will determine whether the legislation conforms with the
parent statute. The court will weigh whether the power conferred by Parliament
has been abused or not.

The use of the court to control delegated legislation by judicial review is apart of
an area of law known an administrative law. The judicial process is divided into
procedural ultra vires and substantive ultra vires.
Procedural ultra vires

Whether or not legislation is procedurally ultra vires will be considered at the pre-
emergent control stage. At this stage the court examines the process by which
the legislation comes into being. If there are preliminary procedural requirements,
which were not followed, the court may find that the legislation was not
legitimately effected.
Procedural requirements can be either mandatory or directory. Where mandatory

procedures have not been followed, the legislation will be void. But if directory
procedures are not followed, the regulations will not be void.
What constitutes mandatory and directory procedures is uncertain. Courts have

not been consistent in determining which is which. But is certain that procedures
required by the constitution are mandatory procedures.
For example in Kelshall v. Pett76 the regulations effected by a minister were held
to be void because he failed to observe a condition precedent (or precondition)
which was required by the constitution. The minister had the authority to declare
a state of emergency. However before he did this, the constitution required that
he put a review tribunal in place. But the minister did not fulfill this condition
precedent before he exercised the power to make the regulations. As a result, it
was held to be ultra vires and consequently void 77.
The courts will look at parent Acts to determine what the preconditions are. Some
preconditions are the requirement for consultation or laying. Take for instance,
the case of Biggs v. COP78. This case involved the infamous train robber. Under
the Extradition Act the minister could make regulations. The condition precedent
was that the regulations should lay in Parliament for a specific time. The
regulations were held to be invalid because the condition precedent was not
fulfilled and Biggs went free. Another example is AG v. Barker79. In this instance
the precondition stipulated that the regulations be effected by the affirmative
resolution procedure. The regulation was the 1982 Education Act Regulations,
which set the conditions necessary for entry into secondary school. It was
invalidated because the mandatory regulation was not fulfilled.
A case where a precondition was not fulfilled but the legislation was still found to
be valid is Springer v. Doorly80. The precondition was laying. Three months after
the Regulations had been read, neither House of Parliament had approved it as
76
[1971] 19 WIR 127
77
This means that the regulation had no effect.
78
[1982] 6 WILJ
79
[1984] 38 WIR 48
80
[1950] LRBG 10

is required. The court held that laying was only a directory condition precedent,
so the regulations could stand.
The requirement of publication is usually strict. Regulations, which require this

precondition (required by the parent Act, only become legal when they are
published81.
Consultation is usually mandatory. Consultation means that the minister or other

delegated body consult with other bodies. For example a minister was required to
consult with a local authority in Port Louis Corporation v. AG82. The reason was
the government wanted to change the boundaries of Port Louis. But the local
authority needed more time before it expressed its’ views. They asked for an
extension and the minister refused. The regulations were found ultra vires.
Substantive ultra vires

Substantive ultra vires is concerned with the substance of subsidiary legislation.
Courts will make sure that the actions of tribunals and the scope of delegated
legislation does not go beyond the function of the parent Act. Delegated
legislation will not be valid it goes beyond the scope of the parent Act (or
enabling statute). Since it is the parent Act that gives the authority to make
subsidiary legislation.
There will be a breach of ultra vires in the substance sense if a functionary
makes legislation outside of the limits of a parent Act or outside of the subject
matter of the delegated power. “Subsidiary legislation must be confined to the
limits of the parent Act.”83 If for example government gave a local authority the
power to make regulations for playgrounds, it would be ultra vires the delegated
power if that local authority also made provisions for the regulation of parks, it
would be ultra vires or outside of the jurisdiction granted.
For instance in AG v. Barker and Another84 , the Education Regulations 1982 was
held to be ultra vires because it purported to give the Minister of Education power
which the enabling Act did not give. The issue was whether the minister could
intervene in the admissions process of secondary schools. It was held that the
Education Act (1981) did not give a minister the power to determine the qualifying
mark of a pupil in the secondary schools entrance exam. Therefore reg 25(93) of
the Education Regulation 1982 which said that he had this power was ultra vires
the Act and consequently invalid.
Another example of substantive ultra vires is Bonadie v. Kingston Board85 . Here

the board had the authority ton regulate the period when elections to the board
should take place. The board did not have jurisdiction to determine disputed
81
Kellshall v. Pett [1971] 19 WIR 127; Gatherer v. Gomez [1992] 41 WIR 68
82
[1965] AC 1111
83
84
[1984] 38 WIR 48
85
[1969] 5 WIR 272

elections. But the Board made a bylaw to this effect. The bylaw was found to be
ultra vires and therefore invalid, it was beyond the jurisdiction of the parent Act.
Courts will look at the use of delegated power as well. If a delegated authority
abuses his discretionary power by deciding matters arbitrarily or unreasonably, or
takes unreasonable considerations into account, he may be found to be ultra
vires the parent Act, the delegated legislation or the fundamental precepts of law.
For example in Mohammed v. Morraine and Another86, a School Board refused to

allow a student to wear Muslim dress to classes. Amongst other things the
School Board considered school tradition. The board also did not consider the
psychological effect of the refusal and had applied the Regulations 87 inflexibly.
Consequently the School Board was found to have acted ultra vires the
Regulations.
Unreasonableness, injustice and unconstitutionality

Apart from not acting ultra vires its’ powers and not making subsidiary legislation
which is beyond the scope of parent Acts, administrative bodies must also not act
ultra vires to constitutional norms or other legal norms.
If subsidiary legislation goes against fundamental norms it will be declared ultra

vires. For example if the use of a discretion is clearly unjust it will be ruled ultra
vires. Also delegated legislation, like Parliamentary Acts cannot violate principles
of the constitution. So, delegated legislation must pass a threefold test:
“1. it must conform to the intention, purpose and jurisdiction of the parent Act;
2. in its creation, the appropriate procedural safeguards must be adhered to;

and
3. it must not violate constituted norms or other legal norms such as public
policy or justice.”88
Criticisms of delegated legislation
(i) Its’ undemocratic - subsidiary power is exercised by un-elected

bodies;
(ii) Delegated authorities often sub delegate to others;
(iii) The volume of subsidiary legislation is significant. It is difficult to keep

track of it.
86
[1995] 49 WIR 371
87
Regulations under the Education Act of Trinidad and Tobago
88

(iv) The controls against abuse are not always efficient. The most important
control is judicial review and this is not carried out unless a citizen
challenges delegated legislation or exercise of power. This is especially
significant in the Commonwealth Caribbean where we are not in the habit
of suing the government or government-associated procedures.
(v) The outcome of judicial review is uncertain.
Customs and Conventions as Sources of Law
“The courts must declare customs and conventions as law and not mere social
practice”.89
Customs
Antoine feels that legal systems of the Commonwealth Caribbean do not reflect
out customs90. Our customs are imported to colonisation and slavery.
The common law rules of custom

“Custom may be viewed as both an historical and legal source of law in the
Commonwealth Caribbean since, in one sense, it is the principle source of all
English law, as it formed the basis of the common law which has been
transplanted to the region.”91
In England a distinction is made between common law and custom. Custom

refers to local custom, which become law. But if common law exists then
common law will take precedence. In the Commonwealth Caribbean, custom
forms a distinct body of law that applies to a locality. This is especially apparent
in land law or property law.
Custom comprises two distinct elements. They are:
1. it must be an exception to common law; and
2. it must be confined to a particular locality, such as a parish, county or

borough. This source of law is not relied upon often, not surprising
considering the above.
Customary rules are not given judicial recognition until settled by a judicial
decision. The party who pleads customary right must actually prove that it exists.
That party must also prove that certain tests are satisfied. They are:
(i) antiquity;
89
90
Ibid
91
op cit Antoine, p 134

(ii) continuance;
(iii) peaceable enjoyment;
(iv) mandatory;
(v) certainty or clarity;
(vi) consistency; and
(vii) reasonableness.
These tests do not apply neatly to the Commonwealth Caribbean, For example
the year 1189 is fixed as to the time from which a custom is considered
antiquated. We cannot use that date for historical reasons. Other than that our
jurisdictions are so small it begs the question as to what exactly is a locality?
Does a community of a 100 people suffice? Consequently it is rare to find cases
that make reference to custom. In St. Lucia is the Civil Code is silent on a point, it
will allow parties to resort to custom.
Convention
Convention as a source of law in our legal system is a topic of much debate in
the Commonwealth Caribbean. It is significant to certain procedures such as the
exercise of sovereign power.
In the UK conventions are basically non-justiciable practices. The controversy for

us is whether they are justiciable here in the Commonwealth Caribbean.
The short answer is yes. The reason is English conventions were transplanted to
our legal systems as codified law enshrined in our constitutions. Therefore those
conventions have constitutional authority. This means that they are no longer just
conventions; they are hard law and are enforceable.
Antoine proposes however that there are some English conventions, which were
not meant to be enforceable in our jurisdictions. For instance Parliamentary
privilege which is meant to apply solely to the Houses of Parliament in England.
In Jagan v. Gajraj92 the Guyanese courts agreed with this position. They held that
the privileges, immunities and powers of the English Parliament were not
automatically received by colonial legislatures. Therefore the speaker of the
Assembly had no power to commit for breach of privilege.
International Law as a Source of Law
92
[1963] 5 WIR 333

According to Antoine international law is not traditionally considered as a

separate and distinct source of law93. But today international law influences legal
systems all over the world. For instance in the Commonwealth Caribbean it has
influenced our constitutional and human rights law greatly.
“The impact of human rights decisions on law and legal systems is particularly
significant in the Commonwealth Caribbean. This is so for two reasons. First,
there is a symbolic relationship between international human rights rulings and
the Commonwealth Caribbean law because of the similarity between
Commonwealth Caribbean constitutions and international rights instruments.
This, coupled with the Privy Council’s newfound justification for expanding the
human rights jurisprudence, has resulted in an osmosis beneficial to the
development of international human rights standards in the region. Secondly,
several Commonwealth Caribbean countries are signatories to the Optional
Protocol on Human Rights, a significant factor …”94
International law is derived from three sources. They are:
(i) treaties or international agreements;
(ii) international customary law; and
(iii) general principles of law recognised by nations,
International courts also consider highly qualified publications as an auxiliary

source of law. The interpretations of international agreements are also apart of
the body of international legal norms and principles. These interpretations are
handed down by courts (regional or international), international committees or
committees which have the authority due to power granted by particular
international instruments.
International law becomes part of domestic legal systems when they are adopted
through conventions and treaties, or by way of accepting practice, which may
develop into binding international custom.
Such international declarations protocols, agreements or conventions influence

all legal systems. “These declare certain legal principles believed to be desirable
for all nations.”95 Some examples are the:
(i) UN Declaration on Human Rights;
(ii) UN Covenant on Civil and Political Right; and
93
94
Op cit, Antoine, pp 156 – 157
95

(iii) Optional Protocol on Human Rights
The Optional Protocol is an optional provision of the UN International Covenant

on Civil and Political Rights. It has had undoubted impact in Jamaica. It was
instrumental in formulating the Pratt and Morgan principle. Its use was also
notable in Robinson v. Jamaica96, in which it was decided that the right to
counsel, when the accused is facing the death penalty is a fundamental human
right.
In 1998 Jamaica withdrew from the United Nations Human Rights Committee
(UNHRC). Jamaica did this so it could resume hanging people on death row and
in order to hang them quickly.
Death row prisoners had had successful recourse to the UNHRC. Consequently
the UNHRC was perceived to be obstructing popular justice in the country. The
ruling in Pratt and Morgan caused panic in Commonwealth Caribbean
government who are burdened with increased crime levels.
Regional law
Regional treaties and agreement also generate legal obligations and influences.
As a source of law their effect is similar to international treaties, and instruments.
The most significant regional instrument is the CARICOM Treaty. In addition
there is the OECS, which is similar to CARICOM for the countries of the Eastern
Caribbean states.
Conclusion
International law can now be legitimately claimed as a source of law in the
Caribbean, if only in the field of human rights.
________________
Students are instructed to read Chapter Twelve of Rose-Marie Belle

Antoine’s, Commonwealth Caribbean Law and Legal Systems.
96
UNHRC Comm 128/1987

(ii) common law and equity – origin and development in the Caribbean;
Introduction to Common Law
Another name for common law is case law. Common law or case law is an
important source of law in the Commonwealth Caribbean. Common law is legal
principles derived from cases. It is relevant where there are no applicable
statutes. Common law or case law is a legal as well historical source. It is a
historical source because the existence of the common law tradition in the
Commonwealth Caribbean is directly linked to our colonial past. In other words
we practice it because it was transplanted to the region under the English.
English common law can be viewed as a historical source because its’

development is linked to the historical development of that country. “This is
because the common law is really the outgrowth of historical custom,
consolidated by the Norman Conquest when these local customs were unified
into one coherent system of law ‘common to all men’ hence the term ‘common
law’”.97
Common law develops on a case-by-case basis. It is this ad hoc legal growth

that makes common law unique. The court builds on the previous judgment in
each case. Originally this practice was oral, in other words it was a body of
unwritten legal rules. These rules were formulated in a flexible and informal
manner by the King’s courts. These courts were collectively known as the
common law courts. The common law courts comprised of three branches, they
were:
1. the Court of King’s Bench;
2. the Court of Exchequer; and
3. the Court of Common Pleas.
But as the common law developed it lost its flexibility and informality and became
rigid and identifiable. Therefore, today it is not strictly true to say that the
common law is an unwritten body of law. For, due to the system of case reporting
it has been solidified.
Eventually the courts developed rigid administrative procedural rules. This also
another reason the common law is unique. An example or procedural rules is the
‘writ’. The writ regulates the initiation of legal proceedings in court.
97

Equity as a Source of Law
“We saw earlier that the common law grew out of the customs and practices of
the English, as promulgated in the ancient common law courts. Yet, when we
speak of the common law as a legal tradition, we are not only referring to the
body of law which developed in separate and different English courts. This body
of law is known as ‘equity’, or equitable principles. In laypersons’ language,
equity means fairness, justice, or what is morally just, but in a legal sense, it is a
much more specific concept. Still, it embraces such notions, as it is a system
which was inspired by ideas of justice. It is commonly said that the law of equity
is based on rule of conscience. Today, however, equity is simply a branch of the
law standing apart from the common law. It may be defined as those principles of
English law which were developed and applied in the chancery, admirality and
ecclesiastical courts.”98
Equity grew up alongside common law but it is a distinct and separate body of
English law. Equity is apart of the common law tradition but it is NOT part of the
common law. This means that the common law has a dual structure. It
comprises:
1. common law rules; and
2. the rule of equity.
‘Common law’ can mean different thins. It can mean being apart of the common
law tradition or it can mean legal principles, which come from case law or
precedent. But it can also mean that which is not equity. In other words it is the
law “developed by the ancient common law courts as distinct from that developed
by the Courts of Chancery.”99
Equitable rules are laws, but a theoretical distinction is made between equitable
rules, rights and remedies as well as legal rules, rights and remedies. Common
law courts develop legal rights; the Court of Chancy develops equitable rights.
The historical justification for and development of equity

As the doctrine of stare decisis developed, the administration of common law
became very inflexible. The common law courts focused more on procedural
accuracy, rather than justice. The common law had been designed to be flexible
and innovative, but it lost those characteristics. This happened because the
doctrine of stare decisis encourages rigidity within the law.
Stare decisis also curbed creativity; so many litigants were left without a remedy
to their problems because courts were confined to the precedents that already
existed as well as to procedures imposed by the court. As a result common law in
98
99

some instances had become irrelevant to society. Its’ rigidity created chaos and
inefficiency. So where common law could not satisfy there was recourse to
equity.
“Take writs and forms of action for example”. 100 “Forms of action included a writ
and particular rules of pleasing and proof, a specific form of judgment and a
method of executing judgment. By the end of the 13 th century the kinds of
available writs and their forms of action had become inflexible. Under the
common law, these systems of writs and forms of action were mandatory. No
action could be brought in the royal courts without a writ (which was then a letter
in the name of the King commanding someone to do what was specified in the
writ). There were, for example, ‘writs of right’ commencing an action of land and
writs of trespass’ for injury to person or property. Litigants had to try to fit their
circumstances into the writ in order to bring their cases before the common law
courts. If they could not, they could obtain no redress.” 101
There was also a need for new remedies because of the development of
society’s social and commercial life. Damages were the only available remedy.
Damages is the payment of money as compensation for a wrong. This remedy
was not always satisfactory, even today it is still not always a satisfactory remedy.
Sometimes a plaintiff wants the defendant to return something, such as land, or
to evict the defendant from land. As a result new equitable remedies were
developed.
The Court of Chancery

Originally the Court of Chancery was the ‘sessions of the Chancellor’. The
Chancellor was the King’s Chief Minister, who was usually a member of the
King’s clergy. In the 15th century the court became a separate and distinct court.
“The matters which were brought to the King through the Chancellor were those
in which no suitable redress or remedy could be found under the common law as
had been developed by that time. Where the common law could not give a
remedy or enforce a remedy, informal petitions were addressed to the Council,
which ordered specific relief in the interest of justice. These petitions were then
passed to the Lord Chancellor.”102
The Chancellor had wide discretion to decide cases justly and fairly. He acted on
the conscience of the parties and issued writs of attendance and gave relief.
Chancellors built up a body of principles called equitable principles. Equitable
principles sought to correct common law’s deficiencies. During this age the King
was thought to be God’s representative and therefore infallible. He was
supposed to be the ‘fountain of justice’. Therefore the Court of Chancery existed
so that he could exercise his power to undo injustice in the legal system.
100
Ibid
101
Op cit, Antoine, pp 122 – 123
102

The nature and the content of equity

Even if not strict legal right exists, equity may grant remedy. That is the nature of
equity; it corrects the deficiencies of common law. For instance if a deal has been
struck and acted upon but no formalities had been undertaken equity will give
effect to the intention of the parties. “For example, a mere agreement to create a
formal lease is enough to create a legal obligation due to the maxim, ‘equity
looks on that as done which ought to be done’.” 103 Equity will also give effect to
legal arrangements if the intention to create legal obligations exists.
In common law remedies are available ‘as of right’. The conduct of the plaintiff is
not taken into consideration, as long as his legal rights have been infringed, he
will have a definite right to a remedy. In equity, remedies are discretionary. In
equity a remedy is only granted if the court decides that the plaintiff deserves it.
So even there was a wrong, but the plaintiff behaved inappropriately he will not
receive a remedy. If damages – a legal remedy – is sufficient the court may not
award an equitable remedy. Therefore the chief differences between equity and
common law is that a remedy in equity is discretionary.
This discretion is exercised according to fixed & settled rules; for example where
hardship would result if a contract were enforced 104. In Dudley v. Dudley105 it was
said that equity does not destroy the law or create it, but assist it.
There are sayings that illustrate the nature of equity; they illustrate how the law of
equity will be applied. A few are:
(i) ‘Equity does not suffer wrong to be without remedy’. So where not remedy
is available under common law equity has the ability to create a new
remedy.
(ii) ‘He who comes to equity must come with clean hands’. This means that a
person who comes to equity must come with a clear conscience, and must
have done no wrong in respect of the matter before the court, in order to
get a remedy. This one of equity’s best-known maxims. The case that
illustrates this principle involved the cult of Scientology. They were the
plaintiffs and were trying to get an injunction to refrain a breach of
confidence and copyright. But the court ruled that they did not deserve a
remedy in equity because they had been protecting their secrets by
deplorable means106.
(iii) ‘He who seeks equity must do equity’. So if someone is applying for
equitable relief he must be prepared to act in an equitable manner himself.
103
104
Shiloh Spinners Ltd. v. Harding [1973] AC 691
105
(1705) Pre Ch 241, p 244; [1905] 24 ER 118
106
Hubbard v. Vosper [1972] 2 QB 84

This maxim is different from ‘clean hands’ because it looks to the future
not the past.
Equity features more prominently in property and contract law. For example the
‘trust’ is an equitable creation. “The trust is peculiar to common law systems. It
arises where property is conveyed to T (the trustee) n circumstances where
equity will compel him to administer it for the benefit of B (beneficiary). The trust
is also instrumental in succession law where property is involved, such as in the
drafting of wills.”107 Examples of new rights created by equity are the:
(i) rights of a beneficiary under a will or a trust;
(ii) existence of an equitable interest; and
(iii) equity of redemption.
Equity has also created new remedies. They include:
(i) the injunction – this prevents foreseeable wrong from occurring;
(ii) specific performance – this compels someone to perform an obligation

such as under a trust;
(iii) restitution – when the defendant has to place the plaintiff in his original
position before the wrong occurred.
The modern expression of equity

The rules of equity today are just as strict as common law. Originally the Court of
Chancery was able to create new rights and remedies. It used to be said that
equity varied with the length of the Chancellor’s foot.
Equity used to be concerned with correcting the inflexibilities of common law. But
now greater emphasis is placed on exercising the discretion within well-defined
circumstances. So equity is no longer viewed as being corrective of the common
law.
The role of the legislature in creating equitable principles and offshore

developments
Sometimes Parliament is the only body that can make the necessary changes in
the law For instance judges may be too timid to exploit “the creative potential of
the law”108. So Parliament will extend equitable jurisdiction into areas that courts
held none existed.
107
108

For example in the United Kingdom since the Judicature Acts 1873 – 75,
injunctions have had wider use, in the areas of tort, labour law and administrative
law. In turn, injunctions have also lead to the development of new rights such as
the law of restrictive covenants in property law.
Offshore legislative development

In the offshore jurisdictions of the Commonwealth Caribbean there has been
innovative development f equitable principles. The reason for the growth of law in
the area is, those countries have created laws in order to address the needs of
investors. Legislation has been used to change traditional trust law principles.
This is significant because ‘the trust’ is a corner stone in this area of law. For
example a very important principle of trust law is that trusts cannot be created in
perpetuity. But offshore jurisdictions have redesigned this rule to extend the
period of specified perpetuity or abolished the rule completely.
New developments by the courts

Courts have not been as adventurous sine the 19 th century. But modern times
have seen some in the law of equity. For example the creation of the doctrine of
equitable estopple and the equitable remedies of the Mareva injunction and the
Anton Pillar order (or search order).
Equitable estopple is a remedy that stops a party from denying something, which
he knowingly or unknowingly has allowed or encouraged another to assume, to
that person’s detriment. Mareva injunctions and Anton Pillar orders are used for
enforcement.
For example the Anton Pillar order allows a defendant to enter a plaintiff’s
premises to inspect documents and remove them to the custody of the plaintiff’s
solicitor. It is a form of mandatory injunction or order for discovery.
A Mareva injunction is an interlocutory injunction preventing the defendant from

removing assets from the jurisdiction. It is informally known as a ‘freezing order’.
Both remedies derive their names from cases109.
The relationship between the common law and equity

Equity is not a self-sufficient body of law. It was formulated to address the
shortcomings of common law. There would still be a coherent system of law if
equity were abolished.
“Originally the Chancery Court had an exclusive jurisdiction in equity where the
common law had no remedy or relief. In addition, the court of equity had a
concurrent jurisdiction where the common law recognised the right but offered no
remedy. For example, where there was a threatened commission of a tort, it
109
Anton Pillar v. Manufacturing Processes Ltd [1976] Ch 55; Mareva Compania Naviera SA v.
International Bulkearners SA [1975] 2 Lloyds Rep 509

could grant an injunction to refrain someone from committing a nuisance. The

Court of Chancery had an auxiliary jurisdiction where the common law
recognised a legal obligation and gave a remedy but was unable to enforce the
remedy.”110
Eventually common law and equity clashed. The Judicature Acts 1873 – 75 took
care of this problem. The Act abolished the separate courts (common law courts
and the Court of Chancery). It then transferred their jurisdictions to the new
Supreme Court of Judicature. The consequence is that now the administration of
common law and equity is fused. But they are still two separate bodies of law, so
damages is still a common law remedy and equitable remedies are still
discretionary – but one court is able to grant both remedies.
It is important to remember that when there is a conflict between equity and

common law, equity will take precedence.
“The general effect of the Judicature Act was to convert the ‘exclusive’ and
separate jurisdiction of equity into a concurrent jurisdiction and to abolish its
auxiliary jurisdiction. There is therefore no need to go to a separate court if one
wishes to obtain an equitable remedy. Still, equity continues to perform the same
function complementing and supplementing the common law in accordance with
moral notions of justice and fairness. It is the common law’s ‘safety valve’.” 111
(iii) precedent.
The Doctrine of Judicial Precedent
The heart of the common law as a legal source is the doctrine of precedent or
stare decisis. The literal translation of stare decisis is ‘let the decision stand’. This
doctrine provides for the development of common law on a case-by-case basis. It
gives the process impetus and scientific rationale.
The nature of the doctrine of judicial precedent

The doctrine of judicial precedent operates where no statute applies to a
particular legal issue. When there is no statutory law the judge will consider case
law. Specifically, the judge will consider cases decided previously on the
particular issue. He will look at the principles contained in such cases; those
principles are called judicial precedents. Binding principles are more important
because they allow the preservation of case law principles.
Therefore judges will decide cases in conformity with existing rules. Because the
rationale behind the doctrine of binding precedent is that judges do not create
law. They use the existing rules to guide them in making decisions. Judges are
therefore bound to apply the legal principles of binding precedent.
110
111

The case of London Tramcars Co. Ltd v. London County Council 112, was one of
the first to make a pronouncement on the doctrine of stare decisis. In that case,
Lord Halsbury stated that
“… a decision of this House once given upon a point of law is conclusive upon the
House afterwards and it is impossible to raise the question again as it was res integra
and could be re-argued.”113
The opposite of binding precedents are ‘persuasive precedents’. Persuasive

precedents are legal principles contained in judgments, which only offer
guidance. These precedents are not binding even though the judge will refer to
them. Obiter dicta may form the basis of persuasive precedents. Persuasive
precedents may originate from lower courts in the hierarchy within a jurisdiction.
It may also originate from other jurisdictions.
For example a decision from the Court of Appeal in Trinidad and Tobago is only
persuasive authority to a court in Jamaica. Precedents from Commonwealth
Caribbean jurisdictions and the UK are highly persuasive in the region. For
example in Boodram v. Ag and Another114 the Court of Appeal in Trinidad and
Tobago commented on the shared heritage that existed between it and Jamaica,
amongst the similarities was a “common history and jurisprudence …” 115
Because the similarities that exist between our constitutional instruments,

precedents from the USA, Canada, India and the European Court of Human
Rights are highly persuasive in constitutional matters. Also when cases involve
socio-economic matters, precedents from other developing countries with a
common law legal system are usually viewed as highly persuasive.
The jurisdiction from which a precedent emanates and the status of the court,
which makes the decision and its date, will determine the degree of
persuasiveness of a precedent. Sometimes, the reputation of the judge will
influence a court.
The hierarchy of courts

The doctrine of judicial precedent cannot work if there isn’t a system of hierarchy
of courts. In the Commonwealth Caribbean the highest court is the Judicial
Committee of the Privy Council. The decisions of that court therefore have the
most authority.
After the Privy Council is the Courts of Appeal, then High Courts or Supreme
Court of Record and intermediate courts such as the family court and resident
112
[1898] AC 375
113
[1898] AC 375, p 379
114
[1994] 47 WIR 459
115
Ibid, p 477

magistrates’ courts of Jamaica. The last courts in the hierarchy are magistrates’
courts and judicial courts.
The rule is that each court is bound by the decision of a court above it.
Sometimes a court is bound by decisions of a court of equivalent status.
Concepts Important to the Doctrine of Precedent
The following are essential to an understanding of the doctrine of judicial

precedent.
1. The ratio decidendi
The only facet of a decision that is binding on a judge is the legal principle or rile
of law contained in that decision. This legal principle or rule of law is known as
the ration decidendi.
A case may contain several ratio decidendi, it is important to distinguish the ratio
decidendi that is relevant to the subsequent case. “The ratio decidendi may be
defined as the statements of the principles of law applicable to the particular legal
problems disclosed by the facts. Essentially therefore, the ratio is the legal
reason which the judge gives for the decision he arrives at in a particular case.” 116
If the case is argued on more than one ground, it is difficult to isolate the ratio.
The reason is the case may be decided on only one of the grounds argued. The
deciding argument will be binding. But it is still possible to have more t5han one
ratio. For example, more than one reasons given for the decision.
Take for instance the case of Read v. Lyons and Co. Ltd117 one of the ratio
decidendi in that case was that the rule in Rylands v. Fletcher118 “…did not apply
to the escape of dangerous substances from the defendant’s control. The second
was that the rule did not apply unless the plaintiff had an interest in land affected
by the escape.”119
It is important to distinguish the ratio from a finding of fact and from the judgment.
The judgment is a combination of legal reasoning and the facts of the case.
The ratio must also be distinguished from the res judicata or the adjudicated
matter. The adjudicated matter will bind the specific parties in the particular case.
Subsequent parties are not so bound. In comparison the ratio binds all
subsequent courts. Therefore the res judicata simply means that the matter has
been determined once and for all. Even if a subsequent case before the courts
116
117
[1947] AC 156
118
(1866) LR1 Ex 265; on appeal (1868) LR 3 HL 330 (a previous case)
119
Op cit, Antoine , p 90

appears to be factually identical, the judge or jury may not necessarily come to
the same conclusions as was arrived at in the earlier case.
2. Obiter dicta
It is very, very important to distinguish statements of law, which are ‘by the way’,
or obiter dicta. There are different categories of obiter dictum. For example, a
statement of law that is related to facts, which were not material or in fact did not
exist, will be obiter dicta.
If a statement does not form the basis of a decision it will be obiter. That will be
the case even if the statement is based on relevant facts. For example legal
principles, which are cited in dissenting judgments, or where the decision is
different from the reasoning due to a particular fact. For example in Hedley Byrne
and Co. Ltd v. Heller and Partners Ltd120, the chief legal principle was obiter
because the only exception to that rule had occurred in that case. The legal
principle was that the maker of a statement owes a duty of care to the listener.
The exception was if the listener protected himself with a disclosure. The
defendant had protected himself with a disclaimer so the principle could not be
contained in the ratio decidendi.
If a judge makes other remarks these may also be obiter dicta. Remarks such as
judicial pronouncements or comments on non-legal matters like morals or public
policy. So if a judge compares the facts of the case to another situation, even if
he says that the hypothesis is relevant, it is still obiter dicta.
Statements of law made per incuriam

Per incuriam literally means through a ‘lack of care’. This occurs when relevant
material, which could have affected the outcome of the case, if it had been
considered, was not brought to the court’s attention. Such relevant material
includes statutory provisions relevant legal principles or precedents.
A Court of Appeal is not bound to follow its’ own previous decision, if it was
satisfied that a judgment was given per incuriam. This principle was developed in
the leading case of Young v. Bristol Aeroplane Co Ltd121. However this does not
always affect the doctrine of precedent. 122
The per incuriam principle has affected only a few decisions. Decisions are only
considered to be per incuriam because of forgetfulness, ignorance or
inconsistency in statutory provisions or binding authority. This as a result, leads
to inaccurate legal reasoning.123 If a case has not been fully argued or if it seems
as though the court has misunderstood law or is unaware of relevant policy
considerations, the doctrine may be applied.
120
[1964] AC 465
121
[1944] KB 718
122
Cassell v. Broome [1972] AC 1027
123
Morelle v. Wakeling [1955] 2 QB 379

The importance of law reporting

The doctrine of precedent depends on an efficient system of law reporting
because legal principles are located in decided cases. This is the reason
important cases are published in ‘law reports’. This mechanism is important to
the preservation of the common law.
The lack of adequate law reporting in the Commonwealth Caribbean is a serious

problem. It also deprives the region from contributing to the development of
common law. We lose this opportunity because judges from all common law
jurisdictions look to other jurisdictions for helpful precedents.
However if the law reporting system is too efficient, that can cause problems as
well. Because then the wealth of material becomes overwhelming.
Avoiding Precedent – The Promotion of Flexibility
The common law is able to remain flexible because the courts are able to avoid
precedents in certain circumstances. They will do this to change judgments,
which are considered to be inaccurately decided. For instance the Supreme
Court can overrule the decisions of inferior courts. In certain exceptional
circumstances it will actually overrule its’ own decisions. Some ways of avoiding
binding precedents are:
1. overruling;
2. prospective overruling;
3. per incuriam & obiter statements;
4. distinguishing precedent;
5. reversing a decision; and
6. first impression decisions.
Overruling
Courts are reluctant to overrule precedents, because overruling works
retrospectively. It does not just affect the case that is overruled; it affects the rule
of law. A decision may be overruled by statute or by a higher court. When this
happens, the legal principle in the overruled case will be treated as though it
never existed.
Prospective overruling
This does not occur in England or the Commonwealth Caribbean. It is an
American practice that some common law jurists believe should be extended to

the Common Law Tradition.124 The US Supreme Court has evoked the authority
to overrule decisions prospectively. “This means that the court applies the earlier
decision to the case before them but overrule in so far as it may affect future
cases”.125
Per incuriam and obiter statements

Courts are not bound to follow earlier decisions where the previous decision was
reached per incuriam or through lack of care. This method is not popular since
judges seldom give judgments, which do not accurately reflect the law.
Courts are also not bound to follow obiter statements. Although in future cases
obiter dictum may become ratio decidendi, in the interim they cannot be treated
as authoritative.
Distinguishing precedent
“The process of distinguishing is perhaps the principle means by which judges
employ to evade judicial authorities which they consider inappropriate to enable
the doctrine of precedent to be flexible and adaptable”. 126 If a precedent can be
distinguished on the facts, it does not have to be applied whether it is binding or
persuasive. To distinguish a precedent there must be a material difference in the
facts of the precedent and the current case. In the later case the judge will be
expected to justify why the distinction was such as to necessitate the departure
from the precedent, and to allow the application of a different rule of law. Counsel
will assist the court in this process. However there are critics who hold the view
that the practice of distinguishing precedent is now very narrow, which has
caused the process to become very artificial.127
Reversing a decision
Reversing a decision is completely different from distinguishing a decision. When
a decision is altered on appeal, it is said to have been reversed. It is only the
particular case that is affected. In comparison, overruling affects the rule of law or
legal principle upon which the decision is based. In other words it affects the
entire body of law.
First impression decisions

“Change in the common law can also occur where there is an absence of a
precedent on a particular legal issue. In such circumstance the judge must create
a precedent in accordance with general principles. Such cases are described as
cases of first impression. In strict theory, these run contrary to the [rationale] of
the doctrine of precedent, for here, the judge is required to create law rather than
to apply it.”128
124
Jones v. SOS for Social Services [1972] AC 944, p 1026 per Lord Simon; [1972] 1 All ER 145.
125
126
127
Gilmore, G. Legal realism: its causes and cure (1961) 70 Yale LJ 1037
128

Advantages and Disadvantages of the Doctrine of Judicial Precedent
The doctrine of judicial precedent has the advantage of legal certainty. In Gallie
v. Lee129, it was found that the House of Lords were not free to override its own
decisions, even though it had given itself the ability to do so. 130
Some disadvantages are:
1. The location of legal principles is difficult because of the volume of

reported case law.
2. The process of distinguishing precedent gives rise to the danger of

illogical technical distinctions, which can lead to the absurdity and
excessive legalism.
3. It causes rigidity within the legal process. This is the most serious
disadvantage of the doctrine.
The Declaratory Theory and the Overruling of Precedent – New

Developments
Courts are very cautious about overruling precedents. The reasons are it will
affect certainty in the law as well as disrupt financial agreements. Courts will only
overrule a precedent if it is clearly wrong.
This was the case in Miliangos v. George Frank (Textiles) Ltd131. Hence the
House of Lords overruled its own previous decisions to the effect that when the
court quoted judgment debts, it was to do so in sterling.
The reluctance to overrule is closely connected to the declaratory theory of the

common law. The declaratory theory assumes as fact that the rules of common
law have existed from time immemorial. This means that the common law cannot
be changed it can only be restated correctly. Therefore the judge does not create
or change the common law; he merely finds the correct statement of law and
declares it. So if a higher court overrules a lower court, it will be on the grounds
that the law had been misunderstood. When the lower court is overruled, it will be
as though the incorrect legal principle had never been stated. So judicial
overruling operates prospectively.
Even though the declaratory theory has been promulgated for years, it is not
accepted that judges do not create law. Lord Wright has questioned how the laws
129
[1969] 2 Ch 17
130
However in 1966 the Lord Chancellor issued a Practice Statement on behalf of himself and the
other Law Lords to the effect that rigid adherence to precedent may lead to injustice in particular
cases, as well as restrict the development of the law. The Practice Statement gives judges
flexibility, so that they can refuse to follow a previous decision when ‘it appears right to do so’
131
[1976] AC 443

that served during feudal times could have served until and during the nuclear
age.132 Ergo law must have been created throughout history.
Consequently jurists question whether the doctrine of precedent is appropriate to

modern times. Other jurists view the role of judges as partly declaratory and
partly innovative. There is authority for this in the case of Jones v. SOS for Social
Services.133
In London Street Tramcars134 the House of Lords found that the decisions bound
all other courts as well as itself. However this precedent has been discredited.
Because in Practice Direction (Judicial Precedent) [1966] 1 WLR 1234, HL, the
House of Lords, “declared that they would in future depart from their own
decisions when it appeared right to do so”.135 Their Lordships said that injustices
could result from rigid adherence to precedent, as well as restrict the
development of the law. This practice direction is regarded as having the force of
law, and has been followed.136
“The implication of the new direction of overruling precedent is equally important

for the Commonwealth Caribbean, both because of the Privy Council, the highest
court in the region – or the Caribbean Court of Justice when it comes into being –
will follow it, and because it represents an important philosophical change for all
superior courts in the region.”137
This was supported in AG of St. Kitts and Nevis v. Reynolds138. The liberal
attitude to overruling precedent was seen in Pratt and Morgan139. Here the Privy
Council overruled its own decision in Riley. It found that it was cruel and inhuman
punishment, as prohibited under s. 17 of the Constitution of Jamaica to unduly
delay the hanging of prisoners on death row.
However the power to overrule a precedent is still exercised, only sparingly.
The Hierarchy of Courts and Courts of Appeal
“The Court of Appeal in the Commonwealth Caribbean is bound to follow the

decisions of the Privy Council, and in England the House of Lords. When the
132
Wright (Lord) Legal Essays, addresses _ 1939, London: Butterworths
133
Ibid
134
Ibid
135
136
Jones v. SOS for Social Services [1972] AC 944; Miliangos v. George Frank Textiles [1976] AC
443; British Railways Board v. Herrington [1972] AC 877
137
138
[1979] 43 WIR 108
139
[1993] 43 WIR 340

pending Court of Justice is constituted, Courts of Appeal in Party States will

similarly be mandated to follow this final superior court.” 140
Within this hierarchy there have been tensions as illustrated in Cassell and Co.
Ltd v. Broome141. That case also established that even though it is possible to
depart from conflicting decisions within the tier of the Court of Appeal, this could
not happen in relation to the upper tiers. Lord Halsham was noted for saying that
the Court of Appeal had “… to accept loyally the decisions of the higher tiers”. 142
Generally Courts of Appeal are bound by their earlier decisions. This was
established in Young v. Bristol Aeroplane Co. Ltd143. The case also established
three instances when the court is not bound. They are:
1. A Court of Appeal can choose between conflicting authorities. The

decision that is not chosen is viewed as overruled.
2. If a decision conflicts with the decision of a higher court, a Court of Appeal

is bound to refuse to follow its’ own decision. It will be bound even if that
conflicting decision has not been expressly overruled. This would apply to
a Privy Council decision in the Commonwealth Caribbean.
3. A Court of Appeal is not bound to follow a per incuriam decision.
The Commonwealth Caribbean adheres to this view. In AG of St. Kitts and Nevis
v. Reynolds144 ; PC St. Kitts & Nevis the court was of the view that it was:
“… most important in the public interest, that the Court of Appeal should be bound by its
own decisions on the question of law, save for the exceptions specified in Young v.
Bristol Aeroplane Ltd.”
In regards to the doctrine of precedent, a distinction has to be made between

criminal and civil proceedings in the Court of Appeal; precedents may not always
bind the criminal division from other decisions of the court. “Primarily, the court
will not consider itself bound by its previous decisions in a criminal matter where
this would cause injustice to the appellant.” 145 The reason for this rule is that
criminal matters involve the liberty of the subject. The court is given the discretion
to decide in such serious circumstances. This rule has also been extended to the
criminal jurisdiction of the Supreme Courts in the first instance 146.
140
141
[1972] AC 1027
142
[1972] AC 1027, p 1054
143
[1944] KB 718; [1946] AC 163
144
[1979] 43 WIR 108
145
146
R v. Greater Manchester Coroner Ex p Tal [1984] 3 All ER 240

This distinction between civil and criminal decisions is accepted and followed
here in the Commonwealth Caribbean. So that Caribbean Courts of Appeal in
criminal cases will not bind themselves to previous decisions. Regardless of
whether these decisions are from Courts of Appeal from other jurisdictions or
from pre-independence courts. If a Court of Appeal gave a defective judgment, its
correction would be the responsibility of a final appellant court.
But in the region, a Court of Appeal, in a civil case can correct its own error, in
exceptional circumstances. The Guyanese Court of Appeal is the forerunner in
this regard, for this occurred in Munisar v. Bookers Demerara Sugar Estate Ltd147.
In this case the Guyanese Court in an employment law case, departed from an
established principle because the previous decision would cause injustice.
Decisions of the Privy Council
The Privy Council will not consider itself bound by its previous decisions because
it does not operate according to the pure theory of precedent. For instance in
Fisher v. AG of the Bahamas148, the Bahamas Lord Steyn reminded the Privy
Council that there were no binding precedents that required them to decide a
narrow question one way or the other.
But the Privy Council is reluctant to depart from previous decisions. It will only
review decisions if a new point of law has arisen.
The decisions of the Privy Council must be followed by Courts of Appeal, High
Courts or Supreme Courts and all other lower courts; at least those from their
own jurisdiction, and treat then as binding. When two Privy Council decisions
conflict the lower court can follow the decision it finds more convincing 149.
“Until the pending Caribbean Court of Justice outlines its own policy on binding
precedent, the question is open. Nonetheless, it is likely that it will operate along
similar lines to the Privy Council and allow itself the greatest flexibility in coming
to a decision”.150
High Courts
The judgments of High Courts are first instance decisions. Therefore, technically,
a decision from one High Court is not binding on another High Court judge. If
there is a conflict the latter decision is to be preferred.
147
[1979] 26 WIR 337
148
Unreported PC Appeal NO 53 of 1997
149
Smith v. Commander of Police [1980 – 83] CILR 126, p 129
150

In the Caribbean we follow this rule to ensure certainty in the law. A High Court
decision is binding on all inferior courts including magistrate’s courts and
tribunals. In practice the decision of a High Court judge is persuasive; High Court
judges do not like departing from precedents given by other High Court judges.
If there is a conflict the latter decision is to be preferred, if it was reached after full
consideration of the earlier decisions. This principle was declared by Denning in
Minister of Pensions v. Higham151.
Decisions from Magistrate’s Courts

Decisions emanating out of magistrate’s courts are not significant in the doctrine
of precedent. One reason is these decisions are rarely reported in law reports, so
it would be difficult to locate the judicial precedent. Furthermore these precedents
would not bind any other court, because magistrates’ courts are the last in the
hierarchy of courts. Magistrate’s courts do not bind themselves to their own
decisions, but they are expected to be judicially consistent.
The Caribbean Perspective – Difficulties in the Operation of Precedent
“While in theory, the legal systems of the Commonwealth Caribbean adhere to

the strict theory on the doctrine of judicial precedent, the doctrine may not always
operate in the way in which it was intended. This is due to the peculiarities in the
region’s legal systems which relates both to structure and outlook.” 152
Problems in the Hierarchical Structure of Courts
The doctrine of precedent needs a hierarchical court system in order to work

well. In each Commonwealth Caribbean state this is not a problem. But when the
region is considered as a whole, clarity is lost.
With the exception of Guyana, all Commonwealth Caribbean Courts share the
Privy Council as their final Court of Appeal. This fact gives rise to a psychological
relationship between those courts. In addition we share political, sociological and
economic similarities as well as CARICOM – in other words, we share an identity.
This promotes unity; but it also causes confusion because it is not easy to
reconcile the status of decisions emanating from the hierarchy. Marie Belle
Antoine feels that “the approaching Caribbean Court of Justice will not
automatically resolve those difficulties”153.
So it is not easy to say which courts will bind which. For example do the
decisions of pre-independence courts bind modern day courts? In addition to
this, how should we treat judgments from sub-regional courts and previous
regional courts, such as the Court of Appeal of the Organisation of the Eastern
Caribbean States (OECS) or the defunct Federal Supreme Court?
151
[1948] 2 KB 153
152
153

Added to the problem is that, due to a shortage of human resources, the same
judges man both the High Court or Supreme Court and the Court of Appeal. The
complexity of the above issues is compounded when we consider the inadequate
system of law reporting in the region.
Pre-Independence Courts
The precedence from pre-independence courts is persuasive rather than binding.
The defining authority for this is Hanover Agencies v. Income Tax Commission154.
The reason courts view pre-independence precedents in this way is because of
the different constitutional status of the two courts as well as the principle of
‘judicial comity’. Judicial comity means the respect courts of equal status accord
to each other. In the Hanover case the Court of Appeal of Jamaica declared that
it was not bound by the decisions of the former Court of Appeal. It stated that the
court was established as a superior court of record by the Constitution (s. 103),
and was a distinct and separate body even though the jurisdiction and powers of
the former Court of Appeal were vested in it (s. 8 Judicature (Appellate
Jurisdiction) Law 1962). The court went on further to say that it would “… always
regard the decision of the former Court of Appeal with the greatest respect and
as being of strong persuasive authority 155. The Hanover case was seminal, it was
decided during the period just after independence, when the Court of Appeal of
Jamaica was newly constituted, and Caribbean judges were perhaps not yet
accustomed to their newfound freedom.
Students are reminded that Guyana abolished the Privy Council as the court of
last appeal.
Decisions from other Caribbean Courts of Appeal

Decisions from other Courts of Appeal in the Commonwealth Caribbean are
persuasive and not binding authority. This was held in the case of Aziz Ahamad
v. Raghubar156.
Sub-regional Courts
Academically decisions from sub-regional courts are more problematic. Regional
courts can be treated as either:
1. A court sitting in several Jurisdictions; or
2. A separate Court of Appeal for each jurisdiction.
If sub-regional courts are treated as a separate Court of Appeal for each

jurisdiction, then their decisions would be merely persuasive. But if the court was
treated as sitting in several jurisdictions, the decisions would be treated as
154
[1964] 7 WIR 300
155
(1964) 7 WIR 300, pp 306-07, per Waddington JA
156
[1967] 12 WIR 352

binding. The former approach seems more correct. The OECS is different from
the Privy Council because it was constituted deliberately and formally as a
regional court.
In practice the status of decisions do not cause difficulties. The OECS Court of
Appeal treats them as binding.
Decisions of the Privy Council
Privy Council decisions originating from one Commonwealth Caribbean

jurisdiction will usually bind other jurisdictions in the region. But if the decision is
felt to be wrong, there is support for the view that a Court of Appeal of the region
could refuse to follow the precedent.
Even though the notion that a Privy Council decision from one jurisdiction can
bind another, seems like a relic from colonial rule it is a modern day issue.
In R v. Singh157, a Jamaican case, the decision “supports the proposition that
Privy Council decisions may bind other courts which share its’ jurisdiction even if
they are geographically outside the region …” 158. The justification for this
approach is to promote uniformity I the common law world.
“A Privy Council decision from another jurisdiction is sufficient to allow a Court of

Appeal to depart from its own previous decision. This is a deviation from the rule
that a Court of Appeal should not so depart, discussed above”. 159 For example in
Williams v. R160, the Trinidad and Tobago Court of Appeal was faced with four
conflicting precedents. They were a Privy Council precedent from Jamaica,
English precedents, precedents from other common law jurisdictions and its own
previous West Indian decision of Johnson v. R161. The court decided that the
Jamaican Privy Council decision overruled Johnson v. R and was the correct
one. Commonwealth Caribbean courts rarely deviate from Privy Council
decisions, regardless of where it originates.
The Guyanese Court of Appeal is not bound by Privy Council decisions as

appeals to the Privy Council have been abolished.
The Relationship between Caribbean Courts and English Courts
The doctrine of precedent operates on the assumption of a hierarchy of courts.

With the exception of Guyana, The Privy Council is the apex of the judicial
system of the Commonwealth Caribbean. But the Privy Council has violated this
157
[1963] 5 WIR 61
158
Op cit, Antoine, 107
159
160
[1974] 26 WIR 541
161
[1966] 10 WIR 402

philosophy by adopting decisions of the House of Lords as the basis of it

judgments. Caribbean courts are in turn bound.
“The Privy Council has ostensibly acknowledged House of Lords decisions as

binding, as seen in Abbot v. R162 thus presuming a nexus between itself and the
House of Lords. The practice was also demonstrated in the case of King v. R163, a
Jamaican case, where the Court of Appeal viewed the English decision of
Karuma164.”165
Under the pure application of the doctrine of precedent there is no justification for
the Privy Council to treat House of Lords decisions as binding. Because the
House of Lords is not apart of the Commonwealth Caribbean hierarchy of courts.
“Where a decision of the Privy Council conflicts with a later decision of the House
of Lords which expressly states that the earlier decision, which the Privy Council
had followed is wrongly decided, it may be legitimate for a Caribbean court to
ignore the Privy Council decision and follow that the House of Lords.” 166 Jamaica
Carpet Mills167 is an example of such an opinion. Here the Court of Appeal of
Jamaica decided the case according to a House of Lords decision 168 , which was
viewed as being the authoritative precedent on the question and point of
‘common law’. As a result the court felt justified in not following a conflicting but
corresponding Privy Council decision. The court said that a House of Lords
decision could be followed to the exclusion of a Privy Council decision when:
“(i) a point of positive law (that is the common law) has been settled by the
decision.
(ii) the House of Lords has adverted to and indicated where in lay the error of
the earlier decision; and
(iii) if the matter were to come up before the Privy Council, it would be bound
to respect the later decision of some of its members sitting in another
place”.169
It should be noted however that this rule is not absolute. Differences in statute,
local circumstances and custom will work against acceptance.
Judicial Precedent and the Declaratory Theory in the Caribbean
162
[1978] 1 WLR 1342, PC; [1977] AC 755
163
[1968] 12 WIR 268
164
[1951] AC 197
165
166
Ibid
167
[1986] 45 WIR 278
168
Miliangos v. Frank Textiles [1976] AC 443; [1975] 3 All ER 801
169
[1986] 45 WIR 278, pp 292 – 93, per Carey J

If the declaratory theory of law is accepted, it means that it is accepted that

immutable legal principles are already contained within the body of law received
from or imposed by the former colonisers.
This view assumes that once the legal principle is declared, all jurisdictions,
which belong to the common law world, are bound. Logically and according to
the strict theory of judicial precedent, this means that we in the Caribbean are
bound by the House of Lords decisions because it is the most authoritative court
in the English common law system, and we are apart of that system.
This curtails the development of West Indian jurisprudence, because English

common law bind Caribbean Courts. Consequently Commonwealth Caribbean
judges have no authority to:
1. overrule precedent; and
2. shape West Indian law; or contribute to the development of the common

law.
Rose-Marie Belle Antoine asserts that the declaratory theory is not reflected in
Commonwealth Caribbean decisions170. We treat English decisions as containing
unchangeable rules that automatically apply to the Commonwealth Caribbean.
This treatment applies to decisions from lower or inferior courts as well. The
development of a unique jurisprudence within the region is therefore undermined.
Caribbean Courts have however been prepared to reject precedent where local
circumstances are different171. They concede to House of Lords decisions only to
the extent that they promulgate a point of common law of general application.
Codified Common Law
When Caribbean statutes are based on English law, they are interpreted as if
corresponding English decisions are binding. Trimble v. Hill172 contains dicta,
which suggests that at least in respect of identical statutes, English decisions are
binding. However it was suggested that such English decisions were only
persuasive in Jaganath v. R173.
The Jamaican Court of Appeal actually rejected the argument that Privy Council
interpretations of identical statutes should be binding on another jurisdiction 174.
They were of the view that such precedents were to be entitled to respect, but
were not binding. This approach was endorsed in Jamaica Carpet Mills.
170
Op cit Antoine, p 113
171
Jamaica Carpet Mills (1986) 45 WIR 278, pp 292 - 93
172
[1879] 5 App Cas 342, PC
173
[1968] 11 WIR 315
174
R v. Barbar [1973] 21 WIR 343

It is thought “that such English decisions should be used merely as guides to

statutory interpretation, as held in the case of Chettiar v. Mahatmee175.”176 One
reason is, the interpretation of an English statute, by an English court may not
reflect the intentions of a Caribbean legislature for adopting that statute.
The status of identical statutes is limited by two rules:
1. The ‘local circumstances rule’; and
2. Statutes must not be contrary to the policy of the local legislation as

expressed in statute.
The ‘local circumstances rule’ state that identical statutes (or statutes in pari
materia) should apply only in so far as local circumstances permit and will be
consistent with their interpretation. This rule was illustrated in AB v. Social
Welfare Officer177. The law had to consider matrifocality and extended families in
the Commonwealth Caribbean in regards to English dicta since it is common in
the Caribbean for grandmothers to care for children, the court departed from
English dicta that limited a grandmother’s ability to adopt children.
The second rule is self-explanatory.
4. Classification of Law:
(i) reasons for classification178;
Classification aids in teaching exposition and writing of what on the surface is a

jumbled mass of material; so too for those who are concerned with its
administration. The Police, Custom Officers and others will be daily confused if
they were concerned with the whole. Consequently they are only concerned with
that segment of the law classified as the Criminal law and import/export trade law
respectively. Also, the enactment of law and the writing about the law
necessitates focusing on some particular problem or area of the law within one or
other of the classification schemes.
(ii) classification bases;
The law can be classified according to subject matter and in so doing, arranged
in alphabetical order, e.g. Administrative Law, Agency Law, Banking Law,
Business Law, Constitutional Law, Comparative Law, Criminal Law and so on.
(a) subject matter – for example, Contract, Crime, Tort;

175
[1950] AC 481
176
177
[1961] 3 WIR 420
178
The notes in topic 3(i) and (ii) are from the notes prepared by CXC

Contract – two or more people who form an agreement, which they intend to
have legal consequences, have formed a contract. So if there is a breach of
contract the parties can go to court to obtain a remedy.
Crime – when people sue each other they are involved in a civil suit or action. In
criminal matters actions are prosecuted by the state. A crime is a public offence
against the State. The object of a criminal charge is not to compensate the
victim; it is to punish the offender.
Tort – “The law of torts deals with the enforcement of duties existing between
individuals as members of society”.179 A breach of those duties may be both a
crime and a tort, for example battery, trespass, and nuisance. A party who has
been injured in tort, has a right to be reimbursed in damages for the wrong
committed. This wrong is called a “tort”. It is a civil wrong independent of
contract. Tort arises out duties imposed by law and not by agreement. Nuisance
trespass and slander are well-known civil wrongs.
Trust – when persons hold property for the benefit of others example land, a trust
is formed. People may do this for example when people want to provide for their
children when they die. Trustees will be appointed to look after the property but
will not benefit from it themselves.
(b) functional – for example, substantive and procedural;
The function that the law serves is also a basis for classification. The laws that
create rights and obligations or recognise and protect such rights e.g. the
provisions of your Constitution that recognise and protect that group of rights
called fundamental rights, are referred to as substantive laws. While procedural
laws are those that lay down the procedure to be followed to vindicate or defend
that right. So the police officer has a duty/obligation to arrest you for certain
offences – assuming the conditions exist for him so to do – an exercise based on
a substantive law that gives him the power of arrest. Having arrested you, the law
lays down the procedure that must be followed by him and the Court for the
proper determination of the case.
(c) conceptual – for example, private law and public law.
Subject matter law can also be classified on the basis of the involvement of the
state as a party. Those subject areas with the state as a party are referred to as
Public Law e.g. Administrative Law, Constitutional Law, Criminal Law and
Revenue Law. Where the law is concerned with parties in their private capacity,
179
Dillavou and Howard, Principles of Business Law, p 7

those subject areas are referred to as Private Law e.g. the Law of Contracts,
Torts, Company Law, Conflicts of Laws.
Law is divided into private and public law. Private law relates to people personally
in everyday transactions. It also concerns private bodies and associations.
Private law includes tort, contract commercial law, family, property and trusts law.
Public law deals with the constitutions and the function of governmental
organisations and their legal relationship with the ordinary citizen and with each
other. These relationships form the basis of administrative and constitutional law.
Crimes which involve the State’s relationship with the power of control over the
individual, is the concern of public law.
5. Structures and Hierarchy of the Criminal and Civil Courts:
The Court System of the Commonwealth Caribbean
The Commonwealth Caribbean legal system is modeled on the English legal

system. However the power to create and regulate our court systems is derived
from our constitutions and other local statutory instruments. We have been able
to do so since independence, this was affirmed in Hinds v. R180.
The court system is based on a three-tier structure. At the apex of the structure is
the Judicial Committee of the Privy Council; this court is based in England. The
Privy Council is the final Court of Appeal for all the territories of the
Commonwealth Caribbean except Guyana. Soon the Caribbean Court of Justice
may replace it. In the second rung of the structure are superior courts (or courts
of record). Finally are the inferior courts. In Jamaica there is a fourth rung. This
rung falls between the superior and inferior courts – an intermediate court.
There are other specialised courts, which are not included in this hierarchy, which
are found in the region. These courts may be inferior, intermediate or superior
courts but because they are specialist courts they cannot be included in the
hierarchy of ordinary courts. Regional and international courts are also not
represented in the three-tier structure (four for us in Jamaica) but they impact the
judicial system in the region. In the Commonwealth Caribbean there is one
regional court.
(i) evaluation of the JCPC and the CCJ
The Caribbean Court of Justice & the Privy Council
The Caribbean Court of Justice The Agreement Establishing the Caribbean

Supreme Court (the Agreement) is the treaty instrument in which the political
180
[1976] All ER 353

leaders of CARICOM agreed in principle to establish the anticipated Regional

Supreme Court. This Court will be called the Caribbean Court of Justice. It will be
the final Court of Appeal of the States who ratify the agreement. Therefore the
Privy Council will be replaced.
Whether the court will come into being depends on whether appeals to the Privy
Council are abolished. The governments of the region will need special
parliamentary majorities or public approval in order to do this. Barbados and
Jamaica have recently ratified the Agreement at the 24 th Meeting of the
Conference of Heads of Government of the Caribbean Community 181. Only
Barbados, Guyana and Jamaica seem to be in the position “… to carry out the
necessary reform for the abolition of the appeals to the Privy Council.” 182
But there is still opposition to the abolition of the Privy Council within the
Caribbean Community. But the Agreement requires only three Contracting
Parties in order for it to enter into force. Antoine feels that the court will be
established before there is unanimous agreement by CARICOM 183. If a
Contracting Party wants to leave, a notification period of three years is required,
so it will be difficult to leave the court.
Presently the Judicial Committee of the Privy Council is the final Court of Appeal
in the Commonwealth Caribbean except in Guyana 184.
The Constitution – The bench of the Caribbean Court of Justice will comprise of
an odd number of judges – not more than nine and no less than five. A President
will head it. Heads of Government can change the number of judges that can sit
in the court185. It has been decided that the court will be based in Barbados. But if
circumstances require it, the court can sit in the territory of the Contracting Party.
The court may also sit in two divisions comprising of at least ten members.
The appointment, removal and discipline of judges is the responsibility of the

specially created Legal Services Commission. It will also determine their terms
and conditions of service. Only a qualified majority of three-quarters of the
Contracting Parties, in conjunction with the recommendation of the Legal
Services Commission can appoint or remove the President.
To be appointed, persons will have had to be a judge for fifteen years in a court
of unlimited jurisdiction in the Commonwealth or have distinguished themselves
in practice for a similar period of time186.
181
2 – 5 July 2003 Montego Bay Jamaica
182
183
Ibid
184
This was abolished under the Judicial Committee of the Privy Council (Termination of Appeals)
Act (1970)
185
The Agreement, Article IV, 1 & 3
186
Ibid, Article IV

Jurisdiction – The Caribbean Court of Justice will have original jurisdiction. But
this will be limited to interpreting the Chaguaramus Treaty which established
CARICOM and laid down its’ sphere of operation. The court will also have ‘all of
the jurisdiction and powers possessed in relation to that case by the Court of
Appeal of the Contracting Party from which the appeal was bought 187.
Appeals to the Caribbean Court of Justice in respect of categories of appeal will

be the same as the Privy Council’s. That is, there will be appeals:
(i) as of right;
(ii) with leave; and
(iii) those with special leave.
The nature and substance of the court’s jurisdiction will also be similar to that of
the Privy Council’s. In civil proceedings if the matter involves a question of great
or general importance, an appeal will lie with leave from the Court of Appeal of
the Contracting Party. In either criminal or civil matters appeals will lie with
special leave of the Caribbean Court of Justice from any decisions of the Court of
Appeal of a Contracting Party.
Contracting Parties will be permitted to allow other categories of appeals in ‘such

other cases as may be described by law of the Contracting Party 188.
The Privy Council became our final Court of Appeal because of colonialism. The
Court is based in England. Even though most countries in the Caribbean are
independent, the Privy Council retains its’ jurisdiction in the Caribbean, but the
nature of it has changed.
Although there is provision for this, few West Indian judges are appointed to the
Privy Council.
The Privy Council’s jurisdiction as the final Court of Appeal is very restricted.
There are two ways to appeal to the Privy Council. You can either get leave to
appeal from our local Court of Appeal or from the Privy Council if the local court
has refused and there are no provisions made for an appeal. The grounds for
appeal to the Privy Council are laid out in the constitutions of the commonwealth
Caribbean189. In civil matters appeals are available as of right provided the
amount in dispute is of the prescribed value or exceeds the states statutory limit
or where the value of the disputed property is of the prescribed value.
187
Ibid, Article V
188
Ibid, Article XI (d) and X 2(b)
189
Jamaican Constitution s. 110

If the matter is civil or criminal but involves a question of constitutional

interpretation, the right of appeal will be ‘as of right’. The appeals are not limited
to final judgments. Interlocutory judgments can be appealed as well provided the
statutory monetary limit is met. Appeals concerning divorce are also ‘as of right’.
There can also be appeals from industrial courts 190.
In civil proceedings if there is a question, which is one of great general public

importance or otherwise ought to be submitted to Her Majesty in Council for
decision191, the local court has the discretion to grant an appeal to the Privy
Council. In addition to this, special leaves of appeal are available to the Privy
Council. This is because of the Sovereign’s prerogative in either civil or criminal
cases or where leave has been refused.
In instances where fundamental constitutional rights or freedoms have been

violated (these are entrenched rights), there is a right of appeal 192 to the Privy
Council. The Privy Council is generous with respect to jurisdiction when it comes
to constitutional issues, as there are no strict requirements for leave to appeal.
But the individual must first exhaust his local alternatives. However no right of
appeal lies in certain cases, such as those relating to electoral disputes 193.
Additional rights of appeal may be prescribed by the legislatures of all
jurisdictions.
Self-limits on jurisdiction – The Privy Council often limits its’ exercise of its’
appellate jurisdiction. Some examples are:
1. It uses its’ discretion to grant leave in criminal matters sparingly. It will not
grant leave unless there is a violation of due process or some other grave
miscarriage of justice.194
2. If there is a clear departure from the requirements of justice it will exercise

its jurisdiction.195
3. The Privy Council will grant special leave if there are questions of great
and general importance, which are likely to occur often. In Reid v. R196,
identification evidence in Jamaican capital offences was frequently
misused. After several years of lobbying, the Privy Council was finally
convinced that the issue was important and frequent enough to be
addressed.
190
Sunday Workers v. Antigua Hotel Tourist Association [1992] 42 WIR 145
191
Jamaican Constitution s. 110
192
However the should be noted that the Privy Council uses this discretion sparingly. As a matter
of fact the Privy Council has often itself limited the exercise of its appellate jurisdiction
193
Russell et al v. AG (1997) 2 Carib LB 1
194
Re Dillet (1887) 12 AC 459, PC
195
Riel v. R (1885) 10 AC 675
196
[1989] 3 All ER 340; [1989] 37 WIR 346

4. The Privy Council will not act as the Court of First Instance. So if evidence
or a point of law was not heard in the lower court, it will not grant leave to
hear them.197
5. The Privy Council does not review facts or evidence, because it does not
benefit from the presence of witnesses, nor is it familiar with the
circumstances of the local courts.198
6. The Privy Council does not change the amount of damages awarded by
the local courts.199
Consequently it would not be true to say that the Privy Council operate as a full
appellate court.
(ii) Court of Appeal, High Courts, Supreme Courts
Superior courts
The superior court (or court of records) is comprised of two courts. They are the
High Court and the Court of Appeal. The jurisdiction, powers and authorities of
these courts is conferred on them by the constitution or any other law 200.
Collectively both courts are known as the Supreme Court.
The High Court is the Court of First Instance or the trial court. The Court of
Appeal carries out the appellate function. It should be noted that the names of
these courts may vary form territory to territory. In Belize the High Court is called
the Supreme Court and the Court of Appeal is called the Court of Appeal.
In electoral cases the superior courts have jurisdiction. Electoral disputes are
confined to the High Court and Court of Appeal. The High Court will determine
matters concerning membership of the legislature (whether it is the Senate or
House of Assembly). In Barbados, Belize and Jamaica the decision of the High
Court is final. But the other territories such as the OECS states an appeal can be
made to the Court of Appeal, but no appeals cannot be made from the Court of
Appeal.
The superior courts also exercise a supervisory jurisdiction over statutory bodies
and statutory powers. This jurisdiction is inherent. The procedure and operational
details of this court are laid down in the Supreme Court of Judicature Acts in the
region. The Act also describes the functions and jurisdictions of the various
courts. Also the courts are given the power to create court regulations or rules.
197
Baker and Another v. R [1975] 23 WIR 463
198
John and Others v. DPP for Dominica [1985] 32 WIR 230
199
Selvanayagan v. UWI [1983] 34 WIR 267
200
Such as common law and equity

High Courts have both an original and an appellate jurisdiction. In its appellate
function it will hear appeals from summary trials coming from inferior courts such
as petty sessional courts. Sometimes, in certain instances the High Court will
hear appeals from administrative tribunals on points of law. Please remember in
Barbados appeals from magistrates’ courts go to a special division of the High
Court called the Divisional Court. The High Court tries both criminal and civil
matters as a Court of First Instance. Its’ jurisdiction in these matter is unlimited.
There is no limit on the amount of damages the court can award but it usually
follows the established principles used to assess the quantum of damages. High
Courts hear actions in equity, common law, divorce and matrimonial causes,
probate bankruptcy and admirality matters. However if inferior courts can handle
less serious matters, the High Courts will focus on the more important civil cases.
High Courts have criminal jurisdictions over all treasons, felonies and
misdemeanors. The court tends to try the more serious indictable offences. But
there is a presumption that if an offence is created by statute it is triable by the
High Court unless the statute says otherwise. Appeals from this court go to the
Court of Appeal. In Trinidad and Tobago sometimes it is possible to go straight to
the Privy Council.
A very significant function of the High Court or Supreme Court is that applications
for judicial review are made within its jurisdiction. So they are viewed as the
‘guardians’ of the constitution. If someone is seeking redress for a violation of
fundamental constitutional rights, a constitutional motion to the Privy Council 201 is
also available, where the application for redress to the Supreme Court failed.
Courts of Appeal only have appellate jurisdiction. Because the court is not
reviewing evidence or facts of the case it sits without a jury. An uneven number of
judges usually sit the number is generally three. The Court of Appeal hears
appeals from the High Court and from magistrate’s courts. Civil appeals from the
High Court are as of right. Criminal appeals however are limited to the following:
“(i) against conviction on any ground which involves a question of law;
(ii) with leave of the Court of Appeal or upon the certificate of the trial judge
that it is a fit case for appeal; and
(iii) with leave of the Court of Appeal against sentence where that sentence is
not one fixed by law.”202
The Court of Appeal also hears appeals from decisions of special courts such as
quasi-judicial bodies. For example the Court of Appeal of Trinidad and Tobago
hears appeals from the Industrial Court of Trinidad and Tobago.
201
In the future this motion will be made to the Caribbean Court of Justice
202

(iii) Magistrates’ Courts, Juvenile Court, Family Court and Petty Sessions
Inferior courts
Inferior courts (or courts of summary jurisdiction) are the lowest ranking courts in
the legal system. They comprise magistrates’ courts and petty sessional courts.
These courts do not have appellate jurisdiction. Petty sessional courts usually
have criminal jurisdiction. They/their:
(i) grant bail;
(ii) issue summonses & warrants of arrest;
(iii) justices of the peace & magistrates can deal with persons who have
committed indictable offences. This means they can examine an accused
to determine whether they should be committed to High Court for trial by
jury.
(iv) have a summary criminal jurisdiction, so they are able to deal with minor
offences if a statute has conferred such jurisdiction on them.
(v) magistrates or justices of the peace have jurisdiction over juveniles and
maintenance of children, in most territories.
(vi) handle quasi judicial matters such as applications for liquor licences.
Appeals from petty sessions go to the High Court.
Coroner’s Courts are included among courts of inferior jurisdiction. The coroner
(or chief officer) is usually a magistrate who sits with a petty jury. The court
examines the circumstances or causes of suspicious or unnatural death. They do
this by conducting inquiries, which are called inquests. The verdict is called
‘inquisitions’.
Magistrate’s Courts are another inferior court. Stipendiary magistrates operate

them. The procedure operated by inferior courts is labeled ‘summary’. Summary
procedures are quicker than in superior courts, because a jury does not sit. “The
jurisdiction of inferior courts is severely limited, either by placing a monetary limit
determined by statute to the type of offence which may be heard, or by restricting
the jurisdiction to particular types of offences. The jurisdiction of magistrates’
courts is conferred by statute. It is diverse and voluminous.” 203 The fines which
magistrate’s impose are fixed by statute. Usually, appeals from magistrates’
courts go to the Court of Appeal. But in Barbados, appeals “go to a special
division of the High Court called the called the Divisional court” 204.
203
204
Ibid

Inferior courts have a dual function; they investigate and try criminal matters.
Superior courts do not do this. Trials in magistrate’s court are conducted by
magistrates, they try summary offences. Summary offences are offences, which
are required to be tried summarily, by statute. Because of their criminal
jurisdictions magistrate’s courts must also hold preliminary inquiries into
indictable matters. They do this to determine if there is enough evidence for the
matter to be sent to High Court.
In some situations, inferior courts can try indictable cases. But the accused is first
given the choice of trial by jury205 or summarily. These offences are called ‘hybrid
offences’. This is a recent legislative development. Where there is no jury, if the
accused is found guilty the penalties are usually harsher.
If a hybrid offence is tried summarily, the accused still retains the right to appeal
to the Court of Appeal206.
In hybrid offences a judge can decide whether or not an accused will be allowed
to proceed summarily. So if an accused chooses summary trial and then changes
his mind, the judge may refuse this request if suspects that the accused is trying
to delay his trial207.
In civil matters inferior courts have limited jurisdiction. The jurisdiction is limited
by monetary value as well as the nature of the offence. For example they cannot
try civil suits in tort such as libel and slander. They also cannot try cases such as
probate matters, seduction and land title disputes.
Inferior courts cannot offer certain types of remedies. This differentiates them
from superior courts. The remedies they offer will be limited by statute as well as
jurisdiction. Inferior courts will have branches located in different parts of the
country. While the superior court will be centrally located, Inferior courts do not sit
with a jury.
Resident Magistrate’s Courts are unique to Jamaica. It is an intermediate court.

The court is similar to county courts of England. Ordinary magistrates’ courts are
operated by stipendiary magistrates. Resident magistrates, who are assisted by
court clerks who are legally qualified, operate resident magistrates’ courts. A
bailiff will also assist the resident magistrate. Where the resident magistrate has
assumed jurisdiction over indictable offences he will also be assisted by an ex
officio justice of the peace and the court administrator and prosecutor. Resident
magistrates have a wider jurisdiction than stipendiary magistrates. They can try
indictable offences as well as civil cases in excess of the statutory monetary
limits208 of magistrates’ courts.
205
That is, at High Court
206
Kwame Apata v. Roberts (No. 2) (1998) 31 WIR 219
207
Chadee v. Santana (1987) 42 WIR 365
208
Which is currently $1,000.00, in other territories it is $500.00

Family Court
The Judicature (Family Court) Act 1975 of Jamaica 209 created the Family Court.
This court has jurisdictional powers over all legal proceedings in relation to family
life. However it does not hear divorce cases. The Family Court is the first of its
kind in the region. Belize and St. Vincent have followed suit, but the idea has not
taken root in the remainder of the Commonwealth Caribbean.
The court’s jurisdiction depends on the priority given to the court and the nature
of the problem. Some courts have summary jurisdiction and others are Superior
Courts of Record. For example some family issues may be crucial to a country so
a superior court may be chosen.
The Family Court was needed because laws were inadequate when it came to
realities such as concubinage and illegitimacy. Our jurisprudence has attempted
to reflect the needs of the West Indian family, for example the concept of
illegitimacy has been abolished, but more reform is needed.
“The Family Court has an obvious sociological thrust”. 210 The aim of the court is
to prevent the breakdown of the family unit. It particularly seeks to protect
children as well as other family members. If this does not work the court tries to
administer family laws and to quickly rehabilitate those who seek help.
Family court personnel are specially trained. This is to help them to understand
the functions and the roles of this coordinated unit (the court works in conjunction
with the support services). Non-legal staff is trained in legal procedure and legal
staff is given a sociological orientation. The court coordinator who is the court’s
administrator heads the non-legal staff.
In Jamaica the Family Court is an intermediate court, therefore it has equivalent

status to a resident magistrate’s court. Consequently the two judges have the
same status as the resident magistrate. In St. Vincent & Belize the court is
equivalent to the magistrate’s court. With necessary adaptations, the procedures
of the resident magistrate’s court apply to the family court.
Now, in Jamaica, the Family Court is a Court of Record by virtue of s. 3(1) of the
Judicature (Family Court) Act 1975. The court’s jurisdiction is not entrenched,
because this will leave room for future change in the court’s jurisdiction.
Acts such as the following give the court express jurisdiction in the matters the
Acts address:
(i) Affiliation Act (1926);

(ii) Children (Adoption of) Act (1958); and
(iii) Children (Guardianship and Custody) Act (1957)
209
As revised the 1995 Act, which establishes the Family Court as a Court of Record
210

Juvenile Courts
In the Commonwealth Caribbean juvenile courts tend to be courts of summary
jurisdiction that specifically hears charges against children or young people. The
philosophy is that the children who are tried by the court should not be viewed as
criminals but as people who need help and guidance. The court tends to look into
the welfare of these children. The court also tries to address the problem of street
children or those who just need care.
Juvenile courts work in tandem with certain social institutions such as the
Probation Office and Social Welfare Department. The jurisdiction of the court
encompasses three main groups:
“(a) juvenile offenders;
(b) juvenile offenders in need of care and protection; and
(c) juveniles deemed to be beyond control”211
There are special procedures for arraigning and trying juveniles who commit
offences. They cannot be taken before a magistrate for instance. Juveniles are
imprisoned only in exceptional circumstances. Hearings are informal, because
the aim is to assist the juvenile.
In Jamaica, juvenile courts are headed by a resident magistrate as chairman and

two justices of the peace, usually one of whom is a woman. The court sits in
different parishes as often as necessary, usually once per week. Juvenile courts
usually sit in a separate building from the ordinary courts of law. Juvenile
hearings are heard in camera212.
6. Role and Function of legal personnel, jury, jurisdiction and procedure 213;
The Judiciary - Jurisdiction
Because of the doctrine of the ‘separation of powers’ the independence of the

judiciary is embedded in the constitutions of the Commonwealth Caribbean.
Another facet of the doctrine is the jurisdiction of the judiciary. Under the doctrine:
1. the court’s monopoly of judicial power is protected; also
2. the jurisdiction of specified courts is also protected.

211
212
Only authorised persons are allowed into sessions, the public is excluded
213
Personnel, jurisdiction and procedure are looked at when considering each court consequently
heading 4(II) focuses only on the jury and judicial jurisdiction

The court’s monopoly of judicial power is a part of constitutional law in Jamaica

(and so the remainder of the Commonwealth Caribbean). This was so found in
the case of Hinds v R. This case decided that only a court can exercise judicial
power. Apart from this it should be noted that a court needs to be established
according to the provisions of the constitution or relevant statute in order to be
lawful. Just because a judge acts in his official capacity does not necessarily
mean that he is exercising his judicial function 214.
For the legal system to administer justice judiciary must be independent. This
means that there must be the institutional independence of the court and that
there must be security of tenure. Salaries and allowances are expected to be
generous in order to ensure independence and impartiality. Judges are also free
from civil and criminal actions for anything said or done while on the bench, even
if it seems to be without cause.
The constitutions of the region provide for the appointment, tenure and removal
of judges. For example the Jamaican constitution establishes a Supreme Court,
which is headed by a Chief Justice as well as senior puisne judges215. A Court of
Appeal is also established which is headed by a President, Chief Justice and
three other judges it also makes provisions for the appointment of other judges
as may be prescribed by Parliament216. The arrangement of the work of the court
is the responsibility of the President of the Court of Appeal; whenever he is sitting
in that court he will preside217.
In the Commonwealth Caribbean the Chief Justice and puisne judges are
appointed by the Head of State i.e. the Governor General (or President if the
territory in a republic). The Prime Minister recommends them for the posts after
consultation with the Leader of the Opposition.
The required qualification of judges will be found in the various Supreme Court of
Judicature Acts of the region. Usually they need to be a legal advocate of at least
ten years standing.
Judges may be removed for misconduct, corruption and infirmity. Only a Judicial
Committee can remove a judge, but first there must be an investigation by a
tribunal of two or more persons218.
The Jury System
214
Williams et al v. The Queen [1997] 2 Carib LB 75, PC Jamaica
215
Jamaican Constitution s. 97(1) & (2)
216
Jamaican Constitution s. 103(1) & (2)
217
Ibid
218
Barnwell v. AG and Another [1993] 49 WIR 88

Trial by jury is a fundamental element of democracies. It is a way of ensuring that

the justice system is fair. It used to be viewed as the cornerstone in the
administration of common law but now its’ use is on the decline.
Whether or not a jury is used depends on whether the matter to be tried is civil or
criminal. If is criminal it will depend on whether it is an indictable or summary
offence. A jury is composed of twelve members in murder and treason trials. In
ordinary criminal and civil matters the jury consists of nine. The purpose of the
jury is to judge facts as opposed to law.
“In contemporary times, we believe that to be judges of fact, one must come to
court ignorant of the facts. Impartiality in adjudicating is therefore based on
ignorance of the facts.”219 So if any juror has knowledge of the facts he must state
these publicly.
There is no absolute right to trial by jury except in relation to indictable offences.

However, Bermuda and the Bahamas have made trial by jury a constitutional
right220. This right pertains to criminal cases triable in the Supreme Court. The
use of juries in civil cases has declined rapidly. Trial by jury is available 221 but
seldom used. It is in the judge’s discretion whether a jury should be used, except
in defamation or fraud.
_____________________
Students are instructed to read Chapter Sixteen of Rose-Marie Belle’s

Antoine’s Commonwealth Caribbean Law and Legal Systems.
219
220
Under the Constitution of the Bahamas, s. 20(2) (g) and the Bermuda Constitution Order s.
6(2) (g)
221
Except in St. Lucia and Guyana

(iii) industrial courts and tribunals, specifically those created by

Constitution or Statute;
Industrial Courts
Industrial Courts or Industrial Tribunals deal with the determination of industrial
relation matters. In Jamaica industrial tribunals are separate quasi-judicial
bodies.
Trinidad and Tobago has an Industrial Court 222. The court is a High Court or
Supreme Court of Record, it has jurisdiction to try all labour law matters 223.
Appeals go straight to the Court of Appeal 224. One of the reasons this court was
developed is, ordinary courts are not viewed as appropriate for handling labour
relation matters – workers/unions never seem to do well. Historically workers
unions have been regarded as restraining trade and promoting criminal
conspiracy.
Consequently the orientation of industrial courts is unique. They operate by the

‘principles and practices of good industrial relations’; this principle is unknown in
other areas of law. Human relations are paramount in these courts/tribunals.
Negotiations are more important than legal technique (consequently not all
personnel is legally qualified). But they are expected to consider the equitable
principle of ‘good conscience’ when examining the merits of a case.
The court’s personnel do not consist of solely legally qualified people.

Economists, accountants and personnel who have experience in industrial
relations, such as trade unionists, staff it.
The court usually only assumes jurisdiction if conciliatory talks have failed and
conciliatory legislation has been exhausted. The court also registers collective
agreements.
Service Commissions
“Other tribunals that have been established are the several Service Commissions
e.g. the Public Service Commission, the Teaching Commission, the Police
Service Commissions to deal with inter alia the discipline of the respective
category of public servants under their control. Where there is national insurance
as in Trinidad and Tobago, there is a National Insurance Appeals tribunals to
settle disputed claims for such insurance.”225
Constitutional reform proposals

222
Established under the Industrial Relations Act 1972
223
Ibid, s. 7
224
Sundry Workers v. Antigua Hotel and Tourist Association [1992] 42 WIR 145
225
This paragraph was taken from the notes prepared by CXC

“… a process of constitutional review began in 1991 with the formation of a Joint

Select Committee on Constitutional and Electoral Reform, charged with
recommending ‘the precise form and content of constitutional amendments both
with regard to an Electoral Commission and other aspects of reform’.
After a series of meetings and after considering a proposal from the Leader of
the Opposition for the establishment of a Constituent Assembly to frame a new
constitution the Joint Select Committee recommended that Parliament should
establish a Constitution Commission to examine proposals from ‘the public as
well as to initiate discussions on pints raised by its own membership’.
The Commission was duly appointed under the chairmanship of Mr. Justice
James Kerr – a distinguished legal luminary – whereupon Parliament in February
1992 suspended the work of the Joint Select Committee. The Commission in turn
convened 36 meetings, hosted 13 consultations which were held in each of the
parishes. It received 129 submissions from individuals and organisations. (The
commission will be referred to hereafter as ‘the Kerr Commission’.)
Meanwhile, in September 1993, the Senate has approved the appointment of a

select committee and on 5 October 1993 the House of Representatives had
taken a similar step. Both committees were charged jointly to recommend to the
legislature the precise form and content of a revised constitution and they began
work on 27 October 1993 when they selected Senator David Coore QC, a
renowned jurist who was President of the Senate, as their chairman. The Joint
Select Committee was to be re-appointed with the same membership following a
prorogation of Parliament in April 1994. It duly considered the voluminous
recommendations of the Kerr Commission and eventually submitted its report to
Parliament in May 1995.
Although the Jamaican Constitution has not up to the time of writing (January
2002) been revised on the basis of the Select Committee’s recommendations,
the research and well considered proposals it has published have been avidly
studied in the other territories of the Caribbean area – and especially in those
jurisdictions which have, like Jamaica, been engaged in reviewing their own
constitutions.
We must now address some of the more pertinent recommendations made and
consider how they have influenced other constitution making.
Citizen’s Protection Bureau In considering how to ensure that citizens whose

rights are infringed secure proper redress, the Jamaica Joint Select Committee
realised that many such persons lack the means of financing proper legal
representation. It was also realised that the ombudsman was effective only in

dealing with complaints arising from administrative action and that the office was
powerless to enforce recommendations made.
To meet those concerns, the Select Committee recommended the establishment

of a Parliamentary Commission to be known as the Citizen’s Protection Bureau,
the Head of which would be the public defender.
This bureau, which has now been established, has two functions:
(a) it replaces the ombudsman, but in addition to the powers previously

exercised by that officer the public defender can compel compliance with
its decisions and in a proper case can even make recommendations for
disciplinary action; and
(b) it ensures that complaints alleging infringement of citizen’s rights are

provided with ready access to professional advise and, where necessary,
legal representation.226
Already St. Kitts and Nevis is considering the inclusion in their new constitution of
a public defender: the Phillips Commission having recommended, accordingly,
after studying the Jamaica proposals.
Service commissions The Joint select Committee recommended that the size
of the membership of the Judicial Service Commission should move from six to
nine members and three members would be members of the non-legal or non-
judicial public service.
The Public Service Commission’s nine members will be – two selected from a
panel of five nominated by the Civil Service Association, one from a panel of
three nominated by the Permanent Secretaries Board; six members appointed by
the Head of State either:
(i) acting on the advice of the prime Minister after he has consulted the Leader of the
Opposition (this being the Majority opinion); or
(ii) after consultation with the Prime Minister and the Leader of the Opposition (this being
the opinion of the Minority).227
The Police Service Commission is to be appointed by the Head of State after

consultation with the Prime Minister and the leader of the Opposition; the
appointments to be subject to parliamentary confirmation. The recommendation
is for an increase in the membership from five to seven. The Joint Select
Committee felt that these additional two members should be appointed at the
226
Public Defender (Interim) Act, 16 April 2000, ss. 13, 14 and 15
227
Final Report of the Joint Select Committee (1995), paras 133 – 34

discretion of the Head of State, while the Kerr Commission felt they should be
selected from professional, philanthropic, religious and other organisations.”228
7. Alternative Dispute Resolution (ADR), for example, Arbitration,

Conciliation and Mediation. (Emphasis should be placed on
Mediation).
Alternative Dispute Resolution
The components of alternative dispute resolution (ADR) mechanism are

arbitration, conciliation and mediation. They can all replace court procedure for
any subject area, but they ten to be used in commercial and labour law.
“Arbitration conciliation and mediation describe processes whereby two or more

parties in a dispute attempt to reach a consensus without resource to the courts
in an environment of compromise.”229 A third party facilitates the process. ADR
allows parties to bargain (or try to) in good faith without being bound by strict
rules of procedure. It is not the rules which will determine the outcome of ADR, it
is the strength of anyone party.
In the Commonwealth Caribbean, arbitration tends to be used in labour law

matters.
Arbitration
Arbitration is conducted in a less formal way than conventional trials. The
arbitrator listens to the evidence submitted by the parties and then makes a
decision in the form of an arbitration award. This award may be binding or non-
binding – this will depend on what the parties would have agreed in advance.
Mediation
Mediation is non-adversarial and private. It occurs where one or more neutral
persons attempt to facilitate discussions, which will lead to the voluntary
settlement of the dispute. After opening statements by all parties the mediator will
meet with the parties separately in private (called a “private caucus”). He will try
to explore various options with them, and help to draw up a set of terms, which
all the parties can agree to in a binding settlement agreement.
Mediation/arbitration – sometimes called “med-arbs”

“The parties initially attempt to resolve their disputes through mediation. If
agreement is not reached by a predetermined date usually not more than two to
three months from the date of submission, the dispute is submitted to arbitration
before the same or different neutral as the parties have agreed”. 230
228
Phillips, F. Sir. (2002) Commonwealth Caribbean Constitutional Law. Great Britain: Cavendish
Publishing Ltd, pp 255 – 256, 259 – 260
229
230
Britton, P. Alternative Dispute Resolution, 1999, I Guy L. R. 108

Conciliation
Conciliation is in-court ADR, which involves a judge. It is like mediation. The
conciliation process may be described as one where a judge is used by the
parties to reach settlement in a civil dispute before filing a civil action by making
recommendations, which are not binding on the parties.
Conciliation usually has a less formal structure than mediation. Judges in this
form of ADR do not necessarily remain impartial, they may take a view that is
inimical to one parties’ position. The judge may conduct the conciliation process
as he or she thinks fit, but will be guided by the principles of impartiality, equity
and justice.
Conciliation is informal and left to the judge’s discretion. It is not open to the
public and the parties are usually heard individually 231. Only in exceptional case
are both parties summoned together.
If settlement is reached it will be reduced to writing in the form of a conciliation

summary, agreement or order. If it is signed by the disputants it is entered thus
having the effect of a final court judgment. “ 232 If there is little hope of conciliation
the judge will formally terminate the process.
Advantages and disadvantages
Advantages:
(a) lack of formality – which could lead to speedy disposal and resolution of
the dispute and it’s causes, by agreeing to relax the rules of evidence
(b) cost – the process saves on time so costs are reduced;
(c) lack of pleadings – reduces time, costs and formality;
(d) the parties have greater control – they can chose arbitrators;
(e) the parties are the focus of the process so there is a lesser chance of
technical injustice;
(f) confidentiality – disputes are resolved in private;
(g) speed – the use of experts in complex legal and technical issues saves
time; and
231
To avoid hostility and to create an atmosphere conducive to compromise
232
Arocho-Soto, A. Conciliation of Civil Disputes in the Territorial Courts of the (US) Virgin Islands,
A Vestige of the Danish Presence in the Caribbean, 1999. Vol. 1 No. 1 Guy L. R. p 74

(h) preservation of relationships – process is informal so it lacks the animosity

of the adversarial system;
Disadvantages:
(a) the right of review is limited – this depends on the rules of the jurisdiction
and what the parties had previously decided;
(b) if delay is not controlled it can get out of hand;
(c) possible conflict of interest – may arise in choice of adjudicators, the

process must be transparent and fair; and
(d) some results are not binding and could lead to further litigation.
8. Ethical Standards of the legal profession: training, discipline and

role of lawyers.
Training
The Council of Legal Education oversees legal education in Jamaica.
The usual course of training is completed in two stages. First a prospective

lawyer must obtain an academic degree in Law. This course usually takes three
years, but completed in two. The first year is pursued at the University of the
West Indies (UWI) Mona, Jamaica and the remainder at Cave Hill, Barbados.
The degree is a prerequisite for the Legal Education Certificate otherwise known
as ‘the Bar’. This is the final stage of classroom training. This part of qualification
is very practical the exams sat are professional, and will test students on matters
they will have to deal with in practice.
Discipline
The legal profession in Jamaica is self-regulatory. The Bar Association is
responsible for, amongst other things, disciplining lawyers 233. Lawyers can be
prevented from practicing (debarred) for very grave offences, such as defrauding
a client.
Professional Misconduct in the English Speaking Caribbean
An attorney may commit professional misconduct by failing to “… fulfill his duty, in

promoting in his own sphere of interest, the cause of justice”. 234
233
In Jamaica, the term ‘lawyer’ or ‘attorney-at-law’ means the same thing. According to The Legal
Profession Act (1972) s. 2 any reference to a barrister or solicitor is deemed to be a reference to
an attorney-a-law. In the English Legal System there are two types of lawyers (barristers and
solicitors) in Jamaica there is only one type (an attorney-at-law), who does the work of a barrister
and a solicitor. This is as result of ‘fusion’, which occurred in 1979.

In the Trinidad and Tobago case, In the matter of Gail Robinson and Beverly
Scobie, Solicitors and In the Matter of the Inherent Jurisdiction of the Court, it
was noted that:
Unprofessional conduct is not limited to cases where the misconduct charged amounts to an
indictable offence235 or is professional in character but extends to all cases where the solicitor’s
conduct is improper i.e. such as to render him unfit to be an officer of the court 236
The standards of professional conduct in Jamaica is governed by the Legal

Profession (Canons of Professional Ethics) Rules. It is prescribed by the General
Legal Council pursuant to the provision of section 12(7) of the Legal Profession
Act 1971. The Legal Profession (Canons of Professional Ethics) Rules governs
and regulates the standards of professional conduct expected of attorneys – at –
law.
Other English speaking Caribbean territories have similar Codes/Canons of

Ethics. Only Guyana does not have prescribed rules of conduct. However this
does not mean that attorneys are not expected to observe standards of
professional conduct.
The rules that make up the Codes/Canons of Ethics of other English speaking
Caribbean territories, are derived from common law principles. The
Canons/Codes of Ethics are just codifications of these principles. Therefore the
guidelines provided by common law principles are just as applicable in Guyana.
The Code/Canon of Ethics provide “ … in effect that specific breaches of the

rules contained therein shall constitute professional misconduct and more
specifically an attorney who commits such breaches shall be liable to any of the
penalties which the Disciplinary Committee and or the court is empowered to
impose.”237
The standard of conduct expected from an attorney is high. Therefore even

though an attorney may do something that is not automatically punishable as
professional misconduct, he may still be penalised. For instance Canon I (b) of
the Code of Ethics states that:
An attorney shall at all times maintain the honour and dignity of the profession and shall abstain
from behaviour which may tend to discredit the profession of which he is a member.
234
Nunez – Tesheira, K. (2001) The Legal Profession in the English – Speaking Caribbean.
Jamaica: The Caribbean Law Publishing Company, p 187
235
The classification of offences as indictable and summary broadly reflects a distinction between
serious and minor crimes. For practical purposes it is the question of trial with or without a jury
which is the important distinction between trial on indictment and summary trial. Offences triable
only on indictment include any offence punishable by death or imprisonment for life on first
conviction
236
HCA No. 2 of 1985 Trinidad & Tobago (unreported) at p 24
237
Ibid, Nunez – Tesheira, p 187

Breaches of Duty Constituting Professional Misconduct
“It should be noted at the outset that there is a duty on every attorney to report
improper or unprofessional conduct by a colleague to the Law/Bar Association or
other appropriate tribunal save where the information relating to improper or
unprofessional conduct is received in professional confidence.” 238
1. Breach of Duty to State and Public
An attorney is guilty of professional misconduct if he advises or assists in the

violation of the laws of the state.
The duty to the state and public is also breached if an attorney enters into a
partnership concerning the practice of law with non – qualified bodies or persons.
The attorney will also be guilty of professional misconduct if he holds a person as
a partner, associate consultant or attorney – at – law, when that person is not
qualified.
2. Breach of Duty to the Court
An attorney is an officer of the court. Therefore an attorney is under a duty to

help in the administration of justice. He is expected to be respectful to the court
and to avoid undignified or discourteous conduct, which is degrading to the court.
Some examples of breaches of the duty to the court are:
i. deliberately making false accusations against a judge or magistrate;
ii. writing letters to the court which are improper, abusive or threatening that
are meant to influence the judge “ … to adopt a cause he would not
otherwise pursue”239;
iii. deliberately acting without authority;
iv. knowingly and deliberately allowing a client to swear to an affidavit which

is false;
v. “attempting to influence the court by e.g. privately discussing a pending

case with the presiding judge”240;
vi. knowingly submitting in court a document that has not been properly
stamped as required by the relevant law;
238
239
240
Ibid

vii. deliberately making a bad point in order to mislead the court. The attorney
only becomes guilty of professional misconduct if he acted dishonestly;
viii. taking part in the creation of evidence known to be false and using
perjured evidence or testimony; and
ix. making unfair remarks to the jury, using improper evidence, using
irrelevant evidence.
3. Breach of Duty to Client
In General
“An attorney is under a duty to always act in the best interest of his client, to
represent him honestly, competently and zealously and endeavour to obtain the
benefit of any and every remedy and defence which is authorised by law.”241
For instance in Sankar v. The State242, a Trinidad and Tobago case, the Privy
Council found that a defence lawyer had failed in his duty, because he had not
explained the legal implications of giving or failing to give evidence at trial. He
had failed to give options to the client, even if he, depending on his client’s
decision, would feel obliged to withdraw.
Another general duty of an attorney relates to his acceptance of a retainer. An

attorney will be guilty of professional misconduct if he attempts to advise, before
he has obtained full knowledge of the facts. “He should therefore avoid making
bold assurances and beware of rash and confident guarantees especially when
his employment depends on these assurances.” 243
This means that an attorney must be candid with a client about the likelihood of
failure or success. He must not allow his client to embark on useless litigation,
particularly when the prospects of success are non-existent. It should be noted
however that clients are free to reject this advice and insist on litigation. In such
circumstances an attorney – at – law will not have acted improperly if he acts for
a party who pursues a claim or defence that will obviously fail.244
However on the other hand, an attorney – at – law must not induce his client to
settle against his wishes by misrepresentation.245
In Particular
241
242
46 WIR 452
243
Forrester v. Francis CLE 156/1983 Jamaica (unreported)
244
Ridehalgh v. Hansfield [1994] Ch 205
245
Bartrum v. Hopkinson (1931 – 37) LRBG 69 (Guyana)

“An attorney is inter alia guilty of professional misconduct vis-a-vis his clients in
the following specific instances:
(i) Confidentiality
Where he fails or neglects to preserve the confidentiality of his client except if

such communication has been made in furtherance of a crime, fraud or other
unlawful transaction.
(ii) Conflict of Interest
Where he acts in any manner in which his professional duties and his personal
interest conflict or are likely to conflict.
(iii) Multiple Representation
Where in the case multiple representation, he acts or continues to act where the
interest of representatives clients are likely to conflict or his professional
judgement is likely to be impaired.
(iv) Fees
Where he charges fees which are unfair and unreasonable or where he charges
fees which are either an over or under-estimate of the services rendered.
(v) Duty to Exercise Care and Skill
An attorney is under a general duty to act expeditiously in dealing with his client’s
matters and to bring to the discharge of his duties thereunder, the necessary
degree of skill, competence and knowledge. In failing to exercise due care and
skill in the conduct of his duties an attorney may be guilty of professional
misconduct. This Misconduct may, depending on the facts of the case, be
compensatory or punitive in nature.”246
(a) Professional Misconduct of a Compensatory Nature – Wasted Costs

in Proceedings
If a lawyer, whether acting as a solicitor or barrister, will be guilty of professional

misconduct if costs are needlessly incurred or wasted. This may be as a result of
failure and default to act competently and/or within a reasonable time. In
situations like this the court makes an order of costs against the attorney
personally.
In cases like this the court does not exercise a punitive jurisdiction over the
offending attorney.
246
Ibid, Nunez – Tesheira, pp 191 - 192

(b) Professional Misconduct of a Punitive Nature
“Although there is some variation in the actual wording, the respective

Code/Canon of Ethics of the various territories, provides that an attorney – at –
law shall not act with unreasonable or undue delay, negligence or neglect and in
the case of Jamaica, inexcusable or deplorable negligence or neglect 247.248 Such
action constitutes professional negligence and may also constitute professional
misconduct. In the case of professional misconduct, a competent tribunal or the
court may exercise its punitive jurisdiction.
This is a mandatory rule.
It is important to remember that negligence “ … might amount to professional

misconduct if it was inexcusable, and such as to be regarded as deplorable…” 249
by other lawyers.250
It used to be thought that professional negligence could not constitute punitive

professional misconduct unless the lawyer’s actions were dishonourable or
morally base.
For instance in Witter v. Forbes251, an attorney negotiated on behalf of his client

with Citibank, who was owed JA$15,000.00 by the former. In a letter addressed
to the client, dated January 27, 1979, Citibank proposed a settlement. The
attorney did not communicate this proposal until October 1980. Proceedings
were brought before the General Legal Council for professional misconduct. One
of the grounds of compliant was the breach of Canon IV (s) which states that an
attorney “shall not act with inexcusable or deplorable negligence or neglect”.
It was argued that professional misconduct had to involve an element of

wrongdoing, deceit or moral turpitude.
It was held that Canon IV (s) had been infringed. It was pointed out that Canon IV
(s) did not require the attorney’s negligence to involve dishonourable conduct or
moral turpitude.
(vi) Fraud/Misappropriation of Client’s Funds
247
Canon of Ethics IV (s). See also Canon IV (r)
248
249
Re A Solicitor [1972] 2 All ER 811
250
Canon of Ethics IV (s)
251
CA 1/1986 Jamaica (unreported)

“As a general rule, any form of fraud or dishonesty committed by an attorney

against the interest of his client will be deemed to be professional misconduct.
This includes misappropriation of clients’ funds, failure to apply a client’s funds
for the purpose for which it was intended, overcharging and failing to keep proper
accounts.”252
The Codes/Canons of Ethics of the various territories provide that:
(i) an attorney must never mingle his funds with those of others, and that he
should at all times be able to refund money he holds for others; and
(ii) an attorney should keep up to date accurate accounts so that his financial
position and that of his clients can be distinguished when required.
It should be noted that the General Legal Council of Jamaica has provided
detailed guidelines for the keeping of “… client accounts etc, maintaining of
books of assets in respect of client’s money received, held or paid by the
attorney and the payment of interest on client’s money.” 253
4. Breach of Duty to Profession and Fellow Attorneys
In General
An attorney must behave towards his fellow attorneys with courtesy, fairness and
good faith. An attorney should not allow the ill feelings of his clients to affect his
relationship with his fellow attorneys.
In Particular
(i) Undertakings
Attorneys must fulfill obligations he has promised to execute in any

undertakings254 to the court as well as to his fellow attorneys. Breach of an
undertaking constitutes professional misconduct as well as (in appropriate
instances) contempt of court.
(ii) Touting and Advertising
252
253
254
“An undertaking is a pledge or promise made by an attorney – at – law in his professional
capacity to do or refrain from doing some act. Although undertakings may be give orally, they
should as a general rule be written or confirmed in writing” - Ibid, Nunez – Tesheira, 156

Attorneys are not permitted to advertise255. However attorneys are permitted to

allow dignified identification of themselves as attorneys. Therefore they are
allowed to print calling cards, letterheads, office signs or directory listings.
It is also a breach of the Canon of Ethics to tout for custom 256. Touting is soliciting
for custom fraudulently. It is illegal whether the attorney does it or is done by
someone paid by him. If an attorney pays or rewards someone directly or
indirectly for getting him work he will be in breach of his professional duty.
5. Criminal Offences
In General
“Where an attorney commits a criminal offence which in the opinion of the Court
or other competent tribunal is of a nature likely to bring the legal profession into
disrepute, the commission of the offence shall constitute professional
misconduct. In this regard, the offence must be of a personally disgraceful
character, the commission of which would make the attorney unfit to be a
member of a strictly honourable profession.” 257
All that is necessary for a finding of professional misconduct is that the attorney’s
conduct brings dishonour to the profession generally. 258
Once the Court, Disciplinary Committee or other competent tribunal is satisfied

about the facts constituting the crime it will not matter:
i. if it is contended that the attorney was wrongfully convicted;
ii. that the attorney was not prosecuted; and

iii. that the attorney was acquitted on a technical defence.
For instance in the case Re King259 “… an attorney was convicted at first instance
of conspiracy to defraud. On appeal the decision was reversed because the
indictment was defective. Upon proceedings to strike him off the Roll of the
Court, Denman CJ said:
We must not merely because the indictment is bad in point of law, shut our eyes
to the fact that the jury have convicted him of conduct rendering him unfit to be
an attorney.
Further, it is necessary neither that the offence or crime be of a pecuniary nature
nor that the attorney should have been convicted as a practising attorney. All that
is necessary is that the offence brings dishonour to the profession generally.
255
Canon of Ethics II (d)
256
Canon of Ethics IV (g)
257
258
Re Hill (1868) LR 3 QB 543
259
(1845) 8 QB 129

In Particular
(i) Offences involving Fraud/Dishonesty
An attorney who has been convicted of an offence involving frauds or dishonesty

will de facto be deemed guilty of professional misconduct in his capacity as
attorney.260 Such offences include bribery, forgery, making false affidavits,
embezzlement, obtaining money by threats, bribery, frauds and conspiracy to
pervert the course of justice.261
(ii) Offences Involving Immoral Conduct
This is a second class of cases in respect of which disciplinary sanctions may be

imposed against an attorney. Examples of such offences include knowingly
permitting premises owned by the attorney to be used as a brothel, acts of
indecent assault and using threatening or abusive language intended to provoke
a breach of the peace.”262
9. Sanctions for breaches of the Code of Ethics
Professional Discipline: Part I – Punitive Jurisdiction
If a lawyer breaches the accepted standards of professional conduct he will be

subject to the disciplinary jurisdiction of the court and/or other competent
tribunals. The disciplinary jurisdictions of these bodies are both punitive and
compensatory263.
It is important to note that the court’s punitive jurisdiction over an attorney in

disciplinary matters is completely different from the legal rights and remedies of a
client or those that other aggrieved parties may have against an offending
attorney. Take for instance Lord Esher’s point of view in Re Grey264:
The court has a punitive and disciplinary jurisdiction over solicitors as officers of the court which
is not exercised for the purpose of enforcing legal rights but for the purpose of enforcing
honourable conduct on the part of the court’s own officers. That power of the court is quite distinct
from any legal rights or remedies of the parties and cannot therefore, be affected by anything
which affects the strict legal rights of the parties.
With the exceptions of The Bahamas, Jamaica and to a limited extent Trinidad
and Tobago and St. Lucia, the court exercises a punitive jurisdiction over all
lawyers. This means they can fine and suspend lawyers as well as strike lawyers
260
Re Weare [1893] 2 QB 439
261
Re Blake (1860) E & E 34; Stephens v. Hill (1842) 10 M & w 28; Re Sinanan (1964) 7 WIR 93
262
263
Myers v. Elman [1940] 1 AC 282 at pp 318 - 319 HL
264
[1982] 2 QBD 440 CA

of the Roll. The reason is in the Caribbean, all attorneys are admitted to practice
by the court.
Extent and Ambit of the Court’s Inherent Disciplinary Jurisdiction
The court’s power to discipline an attorney, without referring to the relevant

disciplinary tribunal was considered in the Trinidad and Tobago case of In the
matter of Gail Robinson and Beverly Scobie and In the Matter of the Inherent
Jurisdiction of the Court265. In this case, two solicitors were called before the court
to show cause why they should not be struck off the Roll of Court. The National
Insurance Board (NIB) was a client of the firm of which the two attorneys were
partners. NIB had entrusted three million dollars to the firm. Subsequently a case
of wrongful conversion266 was made against the two solicitors.
Deyalsingh J found that he had the right and duty as a judge of the High Court, to
exercise the court’s inherent jurisdiction to discipline the two solicitors. His action
was in response to the objective of the legal representatives from the Disciplinary
Committee of the Law Society. Deyalsingh noted that
The court’s inherent jurisdiction in respect of solicitors cannot be disputed. It is the guardian of
the good conduct of the profession and it is incumbent on the court to see that the conduct of its’
officers is beyond reproach and punish those whose conduct is unbecoming of the officer. 267
Trinidad and Tobago subsequently codified this punitive jurisdiction of the court in
s. 42 of the Legal Profession Act 21/1986. The Legal Profession Act of other
territories have also inserted an equivalent provision, they are Barbados, Antigua
& Barbuda, Jamaica, St. Lucia and Guyana.
However Karen Nunez – Tesheira writes that regardless of the court’s inherent
jurisdiction “ … the proper course for the court to adopt, except in the most
urgent and exceptional cases, is for the judges to make or cause the Registrar to
make a report to the relevant Disciplinary Tribunal where evidence of misconduct
is brought t it’s attention at the hearing of the matter or other proceedings in
court.”268
As a matter of fact s. 12(2) of the Legal Profession Act 1971 expressly provides
that:
At the hearing of a matter in which a Judge considers that an act of professional

misconduct or criminal offence has been committed by an attorney – at – law, he may
make or cause the Registrar to make an application to the Committee in respect of the
attorney – at – law.
265
HCA No. 2/1985 Trinidad & Tobago (unreported)
266
Wrongful conversion is “A tort, committed by a person who deals with chattels not belonging to
him in a manner inconsistent with rights of the owner” – Osborn’s Concise Law Dictionary
267
HCA No. 2/1985 Trinidad & Tobago (unreported) p. 24
268

Antigua & Barbuda, Barbados, Trinidad and Tobago and St. Lucia all have similar
provisions in their respective Legal Profession Acts.
Alternatively, the court could in cases where there is evidence of criminal

wrongdoing, report the matter to the office of the Director of Public Prosecution
(DPP)269.
The Exercise of the Court’s Punitive Jurisdiction in Jamaica
“Barristers
Prior to 1960, the Judges of the Supreme Court, exercised exclusive punitive
jurisdiction over barristers. However in 1960, The Bar Regulations Law, Cap. 120
was enacted. This law established a Disciplinary Committee of the Bar
Association comprising inter alia of the Attorney General as an ex officio270
member, and six barristers duly appointed by the Governor on the
recommendation of the Bar Association. 271 The Committee was given full punitive
powers, including the power to fine, reprimand, suspend and to debar a barrister
– at – law from practice.272
Solicitors
Pursuant to the Solicitors Law Cap. 363, a Solicitors Disciplinary Committee was
established in 1941. In accordance with s. 35(2) on the hearing of an application,
the Committee was given the power to inter alia remove from, or strike off the
Roll, the name of the solicitor to whom the application relates and to suspend the
solicitor from practice.
Current Position
In 1972, the Legal Profession Act was enacted. This Act inter alia fused the legal
profession and established the General Legal Council as the disciplinary body for
the newly fused profession of attorneys – at – law.273 The Council was charged
with the general duty to uphold the standards of professional conduct of attorney
– at – law and in particular, was given the full punitive powers as previously
enjoyed by the respective Solicitors and Barristers Disciplinary Committees. 274
Right of Appeal
269
In the Matter of Jeffrey L Toppin, Attorney – at – law and In the Matter of the Legal Profession
Act Cap 370A. Judgement dated December 2, 1987. No number assigned to the proceedings
(Barbados)
270
By virtue of his office
271
Section 5 of the Bar Regulations Law Cap. 120
272
Section 6 of the Bar Regulations Law Cap. 120
273
Section 11 Legal Profession Act 1971
274
Section 12(4) Legal Profession Act 1971

Pursuant to s. 16 of the Legal Profession Act, an attorney has a right to appeal to

the Court of Appeal against any order made by the Committee. The Court of
Appeal:
(i) may dismiss the appeal and confirm the order; or
(ii) may allow the appeal and set aside the order; or
(iii) may vary the order; or
(iv) may allow the appeal and direct that the application be re-heard by the
Committee.
Where it makes an order for the rehearing of an application, s. 17(1) specifically

provides that no greater punishment shall be inflicted upon the attorney than was
inflicted by the order made on the first hearing.
Where the Court of Appeal confirms the order whether with or without variation,
the order takes effect from the date of the order made by the Court of Appeal
confirming it.275”276
Ambit of Punitive Jurisdiction – Is it Extra – Territorial?
The punitive jurisdiction of the court extends to misconduct committed extra –

territorially. This means that the court or disciplinary tribunal of a territory can
discipline an attorney for acts of omissions or dishonesty committed locally as
well as abroad.
The authority confirming the courts extra – territorial jurisdiction is McCalla v. The
Disciplinary Committee of the General Legal Council 277. The facts of McCalla are
as follows. McCalla was admitted to practice in Jamaica in 1962. He then moved
to Canada to live and work between 1977 to 1985. In Canada he was admitted to
practice by the Ontario Bar. In the meantime, his name was still on the Roll in
Jamaica. He returned in March 1985 and resumed practice. The General Legal
Council then discovered that McCalla had been struck from the Roll in Canada
because:
(i) he published as his, the work of other persons without their permission;
and
(ii) he lied on his application for employment with the Federal Government.
He held himself out as a Q.C. and former Deputy Minister of Justice of
Jamaica.
275
Section 17(2) Legal Profession Act 1971
276
277
[1993] 49 WIR 213

Taking into consideration the results of its’ own investigation as well as the
charges that had caused McCall to be struck from he Roll in Canada, disciplinary
proceedings against McCalla were commenced by the General Legal Council.
The purpose of the proceedings, which were initiated by the Chairman, was to
have McCall struck off the Roll of the Court of Jamaica.
At the Court of Appeal, Wright JA had the following to say about the General
Legal Council’s entitlement to uphold standards of professional conduct:
There is no qualification attached thereto. Indeed it would be ludicrous in the extreme if a

Jamaican attorney were allowed to roam the world conducting himself in a manner which
breaches the rules of conduct which govern the profession of which he is a member and be
allowed to maintain that he is not subject to the sanction of those rules because his conduct was
outside Jamaica.278
Professional Discipline: Part II – Compensatory Jurisdiction
The compensatory jurisdiction of the court is exercised by the court making an

order of costs against an attorney personally. This sometimes means that the
attorney pays the costs of the other side. In other cases the attorney can be
ordered to pay the costs of both parties.
This compensatory jurisdiction is exercised exclusively by the court. But it is only

exercised in restricted circumstances. It is specifically incurred when an attorney
acting as a solicitor/instructing attorney in the course of court proceedings cause
costs to be improperly incurred or wasted because of undue delay or by
misconduct or default or without reasonable cause.
However, although the court generally uses this disciplinary jurisdiction in a

compensatory capacity, there is also a punitive element. This is because the
solicitor will have to pay a bill that would ordinarily be paid by one of the parties
to the litigation. As the solicitor will want to avoid this expense, as well as the
adverse publicity, the ability of the court to order costs also acts as a deterrent.
It should be noted that costs can be ordered against as attorney even though he
is no longer on record279.
Negligence/Default – What Conduct is Sufficient?
Where the attorney’s conduct is a serious dereliction of duty that causes extra
costs to be incurred, the compensatory jurisdiction of the court will be invoked.
An order will not be made against the attorney for personal payment of costs if
his improper act or omissions falls short of a serious dereliction of duty. Therefore
278
Ibid, at p 235
279
Brendan v. Spiro [1937] 2 All ER 496

gross negligence or gross neglect will not invoke the courts compensatory
jurisdiction.
It should be noted though, that the rules in England have changed. 280 Now, even
though a solicitor has not incurred extra costs because of a serious dereliction of
duty or serious misconduct, he can still be asked to pay wasted costs personally.
Therefore a solicitor can incur the court’s compensatory jurisdiction, if he has
unreasonably or improperly incurred extra costs or has caused extra costs by his
incompetence. The new rule has already been applied in the case of Sinclair
Jones v. Kay281.
Professional Discipline: Part III – The General Legal Council
Constitution and Membership
The General Legal Council was constituted under the Legal Profession Act 1971.
Under s. 11 the Disciplinary Committee consists of a minimum of 15 persons.
The General Legal Council appoints them. Under the Act 282, members of the
disciplinary committee can be:
“i. members or former members of the Council;
ii. current or former holders of high judicial office;
iii. attorneys who were members of a former disciplinary body; and
iv. attorneys who have been in practice for not less than ten years.” 283
Under r. 2 of the Third Schedule of the Act, the Council will appoint one of the
members of the Committee as Chairman. For the sake of speed in the
investigation or the hearing of complaints made against attorneys the Committee
usually sits in two or more divisions.
Each committee is required to appoint its’ own Chairman, they also need a
quorum of three members before they are able to act.
Procedure
The procedure for the exercise of the General Legal Council’s disciplinary
powers is set out in Schedule Four of the Legal Profession Act 1971. It is as
follows:
280
Since April 1986, R.S.C.O. 62 r. 8 was replaced with R.S.C.O. 62 r. 11.
281
[1988] 2 All ER 611
282
See also the Third Schedule made under s. 11 of the Legal Profession Act 1971
283
Ibid, Nunez – Tesheira, pp 222 – 223

1. A formal application is made by the complainant to the Disciplinary

Committee in the prescribed form.
The applicant should set out the facts by affidavit (s). This is usually done
by a client, but may also be done by an aggrieved person.
2. The application should be submitted to the Secretary of the General Legal

Council284.
3. The Secretary will send the application to the Disciplinary Committee.
4. Apart from setting out the grounds for complaint, the application also calls
upon the attorney to answer the allegations set out in the affidavit.
The complaint will be referred to the DPP if the complaint is of a criminal

nature.
5. The Disciplinary Committee carries out investigations into the allegation.
At this stage the Disciplinary Committee may require further documentary

proof relating to the allegations.
If the Disciplinary Committee finds that there is no prima facie case it will
dismiss the application without requiring the attorney to appear to answer
the allegation. The Disciplinary Committee will notify the applicant and the
attorney of this decision in writing.
6. However if a prima facie case is made out the Disciplinary Committee will
fix a date for the hearing of the application. The Marshal of the Court 285 will
serve the Notice of the hearing and copy of the affidavit to the attorney.
The Notice takes a prescribed form. It includes a request for a list of

documents including affidavits on which the attorney will rely in answer to
the allegations.
7. In compliance with the Notice the attorney is required to file and serve the
requested documents and copies on the Secretary of the Disciplinary
Committee and on the applicant. Either party may inspect the documents
contained in the list furnished by each other.
Hearing
284
The Secretary is appointed by the Committee and usually and is usually not an attorney-at-law
285
“In the Queen’s Bench Division of the High Court, a marshal is an officer who attends each
judge on circuit in a personal capacity. The Marshal of the Admiralty Court is entrusted with
execution of warrants and order of the court” – Osborn’s Concise Law Dictionary

Applications are heard in private.
The hearing is conducted in conformity with the rules of evidence of a normal

court hearing. The Disciplinary Committee may act in whole or in part upon the
evidence given by the affidavit. If it is required the Disciplinary Committee may
summon deponents286 to give oral evidence.
Standards of Proof
The standard of proof required goes beyond a balance of probabilities. Therefore

the standard of proof is high. This is not surprising since allegations of
misconduct involve elements of deceit or moral turpitude.
Professional Discipline: Part IV – The Record of Professional

Discipline in Jamaica
“Figures for the past nine years were made available and according to the figures
supplied by the General Legal Council, between 1992 – 2000, the number of
complaints made to the General Legal Council averaged 240 per year. For the
period 1995 – 2000, two attorneys have been suspended, seven removed from
the Roll, one reprimanded and twenty-four fined”. 287
Karen Nunez – Tesheira writes that generalisations should be avoided. But that
the cynicism that the public feels towards legal professional discipline, in the
English – speaking Caribbean, is well grounded. People feel that self-regulation
is tantamount to trying the Devil in Hell.288
Role
Today law is very much a business, than it is the pursuit of justice. But the
traditional role of lawyers is to represent his client’s best interests to the court.
This said, it is important to remember that lawyers are officers of the court. Their
primary allegiance is therefore not owed to their client, but to the bench.
The Role and Duties of Advocate Attorneys
Introduction
In the Caribbean the roles and duties of attorneys, whether as prosecution or

defence counsel are set out in the Code/Canon of Ethics of the territories. The
Codes/Canons of Ethics are however silent with respect to confessions of guilt.
Because of this the English – speaking Caribbean territories have adopted The
286
“A person who makes a written statement or deposition” – Osborn’s Concise Law Dictionary
287
288
Ibid, Nunez – Tesheira, p 228 - 230

Code of Conduct for the Bar of England and Wales 1990, which has specific
provisions on this score.
Also the role and duties of attorneys overlaps with professional misconduct. The
Code/Canons of Ethics outline these duties, the breach of which constitutes
professional misconduct. Here we look at the role and duties of advocate
attorneys in relation to the conduct of court proceedings.
General Duties of Prosecution and Defence Counsel
The duties of prosecution counsel are wider in scope than that of defence
counsel. As officers of the court, both have an overriding duty to the court.
Defence counsel must be zealous in the defence of his client and he must try to
obtain the best remedy, which is legally available to him. 289 The role of the
prosecution is to seek justice, which is a broader obligation. In criminal cases the
prosecution must use every legitimate means to bring about a just conclusion 290.
Duty to Court in General
Whether prosecution or defence, an advocate attorney shall maintain a respectful

attitude to the court in the discharge of his functions and responsibilities.
Canon V (a) of the Canon of Ethics requires that an attorney does not behave in
a manner that is degrading to the court. His conduct must be dignified and
courteous. In the Bahamas, consistent rude, disruptive and provocative
behaviour can invoke discipline, even though it has not punished as contempt. 291
Consequently an attorney:
(i) shall not make scandalous statements or statements which are solely
intended to insult or intimidate witnesses or other persons;
(ii) shall as an officer of the court and in the administration of justice be

punctual when attending court. He should also be concise and direct in
trial and in the disposition of cases. He should inform the courts of the
estimated length of proceedings before the court when asked by the court.
He should also inform the court of any changes that might affect the
estimated length of proceedings.292
(iii) is required to reveal authorities or documents which are disadvantageous

to his client, if he is required to make them available by the law or
professional standards. Also when relying on authorities in support of his
cases he is required to ensure that the decision has not been overruled. 293
289
Canon of Ethics, Canon IV
290
Canon of Ethics, Canon III (h)
291
Code of Professional Conduct Rule III, Commentary 12
292
Canon of Ethics, Canon V (q)
293
Rondel v. Worsley [1969] 1 AC 191 at p. 227 also Young v. Morales (1995) 50 WIR

Duty to the Court in Particular
(i) Judges
Counsel should never give, lend or promise anything of value to the judge(s)
when conducting proceedings before him. He should not attempt to privately
influence him directly or indirectly, to act in his or his client’s favour. 294 Also an
attorney must not wilfully make false accusations against a judge or other judicial
officer.295
(ii) Jurors
“With respect to jurors, an attorney shall not:
(a) give lend or promise anything of value to a juror where there is a matter
pending in which he is engaged;296
(b) make any attempts to curry favour with juries by fawning, flattery or
pretended concern for their personal comfort;
(c) Communicate with a juror as to the merits of such proceedings, except

where authorised by law or the practise in the court or in the normal
course of proceedings with a judge or person exercising judicial
functions.297”298
(iii) Witnesses
Attorneys are under a duty not to withhold facts or secret witnesses in order to
show the guilt or innocence of the accused. He should not advise witnesses to
make themselves unavailable to the court, for instance by leaving the court’s
jurisdiction.299
Attorneys must not pay witnesses or offer to pay witnesses for giving evidence.
But they can pay reasonably incurred expenses as well as reasonable
compensation for loss of time in testifying in court as well as time taken to
294
Canon of Ethics, Canon IV r (e)
295
Canon of Ethics, Canon V (c)
296
Canon of Ethics, Canon V (b)
297
Canon of Ethics, Canon V (i)
298
Nunez – Tesheira, K. (2001) The Legal Profession in the English – Speaking Caribbean.
Jamaica: The Caribbean Law Publishing Company, p 237
299
Canon of Ethics, Canon V (k)

prepare for testimony. This also applies to expert witnesses 300, but he should only
be paid a reasonable fee for his professional services. 301
Attorneys must not abuse, harass or intimidate witnesses. 302 An attorney must not
appear as a witness for his client except in formal matters where his appearance
is essential to the ends of justice.303 Therefore if it is necessary for an attorney to
be a witness in a formal matter, the conduct of the case should be entrusted to
another attorney. Also, he is not to act as advocate in any appeal to the decision
of the proceedings in which he was an attorney. 304
(iv) Perjured Evidence/Fraud/Illegal Conduct
As an officer of the court an attorney must never knowingly mislead the court. He
should also avoid implying things about the other party or witnesses when he has
insufficient information to that effect.
An attorney:
(a) must not knowingly use perjured or false evidence, he must not help
create or use evidence which he knows is untrue;305
(b) must not knowingly make a false statement of law or fact;
(c) must not knowingly present to a judge, court or other tribunal that a
particular state of facts exists. If he knows that this has been done with the
intention of misleading the court he must disclose this to the court or
promptly cal on a witness to rectify the same;306 and
(d) must not help or advise his client or a witness in fraudulent or illegal
conduct.
Duties of Defence Counsel
“Every counsel has a duty to his client fearlessly to raise every issue, advance
every argument and ask every question, however distasteful which he thinks will
300
“ A person with special skill, technical knowledge or professional qualification whose opinion on
any matter within his cognisance is admitted in evidence, contrary to the general rule that mere
opinions are irrelevant; e.g. a doctor or surgeon, a handwriting expert, a foreign lawyer. It is for
the court to decide whether the witness is so qualified as to be considered an expert.
In any case to be tried without a jury, the court may appoint an independent expert, called the
‘court expert’, to inquire and report,” – Osborn’s Concise Law Dictionary
301
Canon of Ethics, Canon IV (l)
302
Canon of Ethics, Canon V (p)
303
Canon of Ethics, Canon V (p)
304
R v. Harris Hoo Shue [1936 – 40] 3 JLR 108
305
Canon of Ethics, Canon V (m)
306
Canon of Ethics, Canon V (n)

help his client’s case.”307 However as an officer of the court, his overriding duty is
to the court in the administration of justice.308
It is the duty of defence counsel to seek justice. However he should endeavour

not to declare his personal belief in the innocence of his client neither in
argument to the court or when addressing the jury. Counsel also must not
declare personal knowledge about any facts in the matter being investigated, nor
is he to declare his belief in the justice of his cause. 309
(i) Defending a Client Accused of a Crime
“When defending a client accused of a crime, irrespective of any belief or

opinions which he may have formed as to the guilt or innocence of his client,
defence counsel must endeavour to protect his client from being convicted
except by a competent tribunal upon evidence which is sufficient to support a
conviction for the offence with which the client is charged. 310 In so doing he must
not assert that which he knows to be false or set up a case inconsistent with the
information given to him by the client.” 311
What happens if a client confesses his guilt to his attorney? Attorneys have a
duty to their clients to maintain client/attorney confidentiality. On the other hand
every attorney is an officer of the court with an overriding duty to the court.
Therefore he must not knowingly mislead the court and he must not lie to the
court.
In the situation where a client does confess to a crime an attorney must consider
two facts;
(a) whether the accused’s confession of guilt is clear and unequivocal; and
(b) the stage at which the confession is made.
Where the confession is made before the commencement of proceedings
The attorney may withdraw from representing the client if he confesses before
proceedings have started.312 But if the client is going to plead guilty the attorney
may still act.
If the client insists on pleading not guilty an attorney may still continue to act.
However he must explain all the possible consequences. In particular, he must
307
308
Rondel v. Worsley [1967] 3 All ER at p 998
309
Canon of Ethics, Canon V (j)
310
Canon of Ethics, Canon III (g)
311
Ibid, Nunez – Tesheira, pp 238 – 239
312
The Code of Conduct for the Bar of England and Wales 1990 para 12.5

explain that restrictions will be placed on the conduct of the defence (these will
be considered below).313
Where the confession is made during proceedings
If an attorney wants to withdraw in criminal cases, he must seek the court’s

leave. Whether leave is granted is in the court’s discretion. However if
proceedings have commenced and an attorney’s withdrawal would compromise
his client’s position, the attorney should continue to act. However he must act
within the strict limitations, which are imposed by his client’s confession (we will
look at these below).314
Limitations Imposed on Client on Conduct of Case
“Although defence counsel should not reveal the client’s perjury he must at the
same time avoid any involvement in the client’s perjury. He should therefore seek
to avoid direct examination of his client; he shall not argue to the jury the
accused’s known false version of the facts; he may not recite or rely upon the
client’s false testimony in his arguments. In addition he cannot make a plea in
mitigation.315
In particular, defence counsel may not protest his client’s innocence nor set up
an affirmative case consistent with the client’s confession by e.g. asserting or
suggesting that some other person committed the offence charged or by calling
any evidence in support of an alibi intended to show that the accused is taking
the stand against his advice.
Although defence counsel is severely restricted in the conduct of the accused

client’s defence in cases where the client has confessed his guilt, the attorney
may nevertheless present a technical defence by, inter alia, objecting to the
competency of the court, the form of the indictment and the admissibility or
sufficiency of the evidence.316 In attacking the evidence for the prosecution, he is
entitled to test the evidence of each individual witness for the prosecution by,
inter alia, cross – examination or in his speech to the tribunal and to argue that
the evidence taken as a whole is insufficient to amount to proof that the accused
is guilty of the offences charged, but he should go no further than that. 317
(ii) Disclosure of Previous Conviction of Client
313
Ibid
314
The Code of Conduct for the Bar of England and Wales 1990 para. 13.3 and R v. Lyons [1978]
68 Cr App 104
315
The Code of Conduct for the Bar of England and Wales 1990 para. 13.3
316
317

Defence counsel is under no duty to disclose the fact that a client has a previous
conviction if the prosecution has lead the court to believe that the accused client
has no previous conviction.
(iii) Withdrawing from case
Counsel can refuse to act for a client who has confessed guilt but is still
determined to plead not guilty. However the Canon of Ethics, Canon IV (q) lists
the general circumstances in which an attorney can withdraw his services from
an undecided case before the court or other tribunal. They are:
(a) where the attorney cannot conscientiously represent a claim or defence

that the client insists upon;
(b) where the client wants to pursue an illegal path or deceive the court;
(c) where a client has committed fraud during proceedings but will not rectify
or cannot rectify the matter when asked to by counsel;
(d) where to continue acting is tantamount violating a law or disciplinary rule;
(e) “where the client by any other conduct renders it unreasonably difficult for
the Attorney to carry out his employment as such effectively or in
accordance with the judgement and advice of the Attorney, or the Canon
of professional ethics”318; and
(f) where counsel cannot carry out his services effectively for any other good
and compelling reason.
Duties of Prosecution Counsel
Prosecution counsel is expected to act fairly and dispassionately. The reason is

he is exercising a public function that is discretionary and which gives him power.
His primary duty is to assist in the administration of justice. He should ensure that
a case is conducted properly efficiently and in a reasonable time. It is not his duty
to represent any person.
It is important to note that it is not the duty of prosecution counsel to obtain a

conviction by every means at his command.319 Prosecution counsel must present
the case fairly and impartially. Counsel is also to ensure that the jury is also
briefed on the law relating to the facts.
Prosecution counsel must also male disclosures to the defence counsel (or to the
accused) in a timely fashion. If the accused is not represented disclosures should
318
Canon of Ethics, Canon IV (v)
319
Code of Professional Conduct for the Bar of England and Wale para 11.11

be made to the court. Disclosures should include all the facts and all the
witnesses known to prosecution counsel. This should be done whether or not the
disclosures tend towards the innocence or guilt of the accused. 320 Therefore
prosecution counsel must:
(a) make promptly available to the defence all the witnesses and relevant
statements; and
(b) to determine what evidence is necessary and write exactly what is

necessary so as to send it to the defence counsel as soon as
necessary.321
If prosecution counsel finds that there is no evidence or so little evidence as to

make it dangerous to leave the case to the jury, he is under a duty to tell the
court of his view. He should ask leave to withdraw from the prosecution. “It is
quite wrong of counsel to accept any instructions to go on with a prosecution,
once he has formed a view that the prosecution should not continue 322.”323
Prosecution must not withhold evidence that proves the guilt or innocence of the
accused. Also in the settling of indictments324 prosecuting counsel should act
promptly. He should also refrain from overloading it with too may defences or too
many counts.325
Prosecution counsel should not attempt by advocacy, to influence the court in

sentencing. If the defendant is unrepresented, prosecution counsel is duty bound
to inform the court of mitigating circumstances he is
320
Ibid
321
See on this the Code of Professional Conduct for the Bar of England and Wales para 11. 4 (d)
322
Abbot v. Refuge Assurance Ltd [1961] 1 QB 433 at 451
323
324
“A formal document setting out the charges against the accused. An indictment consists of
three parts: (1) the introduction indicating the venue and defendant; (2) the statement of offene;
and (3) particulars of the offence
325
See on this the Code of Professional Conduct for the Bar of England and Wales para 11. 4 (d)

6. Legal Aid
Legal Aid in Jamaica
The United Kingdom experience has influenced the development of legal aid in
Jamaica.
Legal Aid in Criminal Cases

Provisions were made for legal aid in criminal cases as early as 1872 326. It
allowed for the payment of three guineas per a day to a “barrister, advocate or
attorney” assigned by a circuit court judge to defend a poor person charged with
a capital offence.
In 1938 the Poor Prisoners (Capital offences) Defence Law (1938) tried to
establish a system of legal aid for prisoners. Further to this the Court of Appeal
Law (1952) (along with establishing the Court of Appeal of Jamaica) empowered
the court to assign a “solicitor and counsel or counsel only” if the court was
satisfied the prisoner was in need and it was in the interest of justice to do so.
The Poor Prisoners Defence Law of 1961 repealed the 1938 law. The 1961 law
widened the scope of legal aid under the criminal law. A person charged with
manslaughter, rape and infanticide amongst others could obtain a legal aid
certificate. However it was (is) difficult to obtain a certificate. For example in the
period January 1972 to October 1973 only fifty certificates were granted out of
one hundred and ten applications.
Legal Aid is available for criminal matters today under The Legal Aid Act 2000.
Under s. 15(1) “legal aid may be granted to any person who is detained at a
police station or in a lock-up, correctional institution or other similar place …”
Legal Aid in Civil Cases

Legal aid is available in the Resident Magistrate’s courts and in the Supreme
Court. Under s. 16 of the Legal Aid Act 2000 anyone in need of legal services in
any civil cause or matter may apply for legal aid if he or she cannot afford to
defray their legal costs.
The Judicature (Resident Magistrates) Act 1928 governs the granting of legal aid
in the resident magistrate’s courts327. The assistance provided is very limited. If
leave is granted, a poor person will be given the right to sue in forma pauperis.
The applicant must satisfy the court of his poverty, by submitting an affidavit. He
should also obtain a certificate signed by a Justice of the Peace, a clergyman, or
a minister of religion vouching for the applicant.
326
Criminal Law, Law 24 of 1872
327
Under s. 142 Suits in forma pauperis

It is worth noting that the Norman Manley Law School under the auspices of the
Council of Legal Education operates a Legal Aid Clinic. The clinic used to train
students but is also operated for the benefit of poor members of the public.
10. The Ombudsman – role and functions.
The Office of the Ombudsman
Role
The office of the Ombudsman is the most popular alternative dispute mechanism
in the Commonwealth Caribbean. The Ombudsman addresses abuses which are
not convenient for resolution at court or which the court cannot adequately
handle.
Our society has become more bureaucratic and the executive and regulatory
power of the ‘administrative State’ encroaches on our lives. This threatens our
rights and liberties. The role of the Ombudsman is to protect citizens against the
abuses of public administration as well as their errors and inefficiencies.
Amongst other things, the Ombudsman office can serve in an explanatory or

mediating role. This service is needed because in general Caribbean societies do
not participate in constitutional politics. Consequently the government is remote
from the governed. The International Bar Association defines the office of the
Ombudsman in the following way328:
“An office provided for by the constitution or by action of the legislature or

Parliament and headed by an independent high level public official who is
responsible to the legislature or Parliament, who receives complaints from
aggrieved persons against government agencies, officials and employees or who
acts on his own motion and who has the power to investigate, recommend
corrective action and issue reports.”329
The office is investigatory and it aims to address relevant complaints. To achieve

this the Ombudsman has wide powers and protection. In Jamaica the office of
the Ombudsman is set up by the Ombudsman Act (1978) 330.
Functions
“The Ombudsman’s function is called into operation where a citizen or body of
citizens suffers an injustice due to a fault in administration or from administrative
action or inaction.”331 He may conduct investigations in two sets of situations:
1. when an individual or a body of persons complain; or

328
Owen P. ‘Current Ombudsman issues – an international perspective’, seminar papers, The
Role of the Ombudsman in the Commonwealth Caribbean, 1989, Barbados: ISER, UWI, p 3
329
330
Act No. 23 of 1978
331
op cit Antoine, p 307

2. on his own initiative.
Parliament can refer complaints to the Ombudsman if Parliament thinks that

there are special reasons that make such an investigation desirable in the public
interest.
The Ombudsman’s investigation should be guided by public interest. In Jamaica

he can investigate matters relating to the police, judicial proceedings, personal
and other situations where there is redress for a breach of fundamental rights 332.
He may deny jurisdiction on grounds of triviality (deminimis rule), frivolity, bad
faith or remoteness of interest.
The Ombudsman’s principal function is to investigate administrative decisions or

recommendations of government departments or authorities. This includes
advice given to ministers. The matters to be investigated include injustice and
maladministration.
Under s. 12(1) – (5) & s. 12(3)(a) of the Jamaica Ombudsman Act (1978) the
Ombudsman can investigate a matter where the complaint has or had a judicial
remedy or remedy for a tribunal, provided that the Ombudsman is satisfied that it
is not reasonable for the complainant to take or have taken such proceedings.
The Ombudsman can also investigate matters taken to a Service Commission

about appointments, removals, promotions or disciplinary controls etc in regards
to any person. The Jamaican Ombudsman is not prevented from investigating a
matter that the complainant could apply to court to resolve under s. 25 of the
Constitution333.
In Jamaica the Ombudsman is allowed to comment on legislation 334 and there

appears to be no limitation as to investigating policy.
In other territories Ombudsmen are not allowed to scrutinise investigating policy.

If the complainant would have a legal remedy, the Ombudsman does not have
jurisdiction in those cases. However, if there are ‘special reasons’, he may
exercise a retained discretion to investigate the case.
332
Jamaica Ombudsman Act (1978) s. 12(1) – (5)
333
This section relates to redress for the contravention of fundamental rights and freedoms
334
s. 21(5) (b)

11. Law Reform and Law Revision
Law reform and law revision in the Commonwealth Caribbean has to be viewed
from the constitutional/colonial context. At least two countries in the region are
distancing themselves from their colonial past (Jamaica and Barbados). There
have been cries from commentators ad politicians for review of the constitutions.
The issue of constitutional reform is now married to the future of the Privy
Council and consequently the creation of the Caribbean Court of Justice. “At the
end of the day, however, the issue is likely to be dealt with as a political
independence that the region as a whole enjoys.” 335
_____________________
Students are instructed to read Chapter Thirteen of Commonwealth

Caribbean Public Law by Professor Albert Fiadjoe 336.
335
Albert Fiadjoe, Commonwealth Caribbean Public Law, p 293
336
There are copies in the library

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Caribbean Legal Systems

CARIBBEAN EXAMINATION COUNCIL

CARIBBEAN ADVANCED PROFICIENCY EXAMINATIONS (CAPE)

DLS (October 2004)

1. NATURAL LAW ANDPOSITIVE LAW

“There are four popular definitions of Law:

1. the legislative pronouncement of rules to guide behaviour;

2. those rules of conduct put in force by legislative authority or court

3. an institution which is essential to the social nature of man and without

4. the enforceable body of rules that govern society.

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All of these definitions are relevant to an understanding of “Law” and each

“an enforceable body of rules”

“a general norm mandating or guiding conduct or actions in a given type of

(i) nature, origin, role, and functions;

(a) The English Perspective

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(b) The Caribbean Perspective - Reception

Antigua: The Supreme Court of Judicature Act, Cap 81

The Bahamas: The Declaratory Act, 1799

Jamaica: The Interpretation Act, Cap 165, section 37

Caribbean territories were ruled at different periods in the region’s history by

Role and function of law

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Professor Hart argues:

(ii) Theories of law

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propounded by the different legal philosophers. These different theories govern

Natural law and Positive law

(a) Natural law

In Calvin Eversley’s article on “Law, Religion and Morality”, at page 4, of the

(b) Positive law

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2. The Influence of Morality and Religion on Law

“Cicero, in defining “true law” as “rights reason in agreement with nature” 7

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The positivist approach

“It is also hereby submitted that these specifically approved or accepted

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The relationship of religion to law and morality

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Islamic law are considered to be “irreligious” and devoid of legitimacy. 21

Relationship of universal, morality and differing religions

Free will in relation to law, religion and morality

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3. Concepts of the phrase ‘sources of law’:

Introduction to Sources of Law

(a) literary sources; CONSTITUTION

(b) legal sources; legislation (primary and subsidiary)

(c) historical sources; common law, judicial precedent

(e) customs and conventions

Literary sources of law

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Historical sources of law

It may be argued, “...that the historical source of law is particularly important in

There is a very strong direct interrelationship between the Commonwealth

The following are legal sources of law in the Commonwealth Caribbean:

(a) the constitution;

(c) the common law and judicial precedent;

(e) international law and the laws of regional treaties; and

In the Commonwealth Caribbean international law was not traditionally a source

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region’s jurisdictions validity and authority. This is particularly relevant to labour

The Written Constitution as a Legal Source