Judges and judicial methods have recently been in the news. In the context of Jamaica, there have been public exchanges recently pertaining to the Caribbean Court of Justice (the CCJ).

The debate concerning the CCJ has the familiarity of an old friend who constantly repeats arguments from the past, so perhaps not much is lost by avoiding further repetition of the broad arguments today. But there is said to be a new development arising from the case of Lescene Edwards v R ((2022) UKPC 11), decided April. Among other things, this case has stimulated additional comments to the effect that the CCJ should not become Jamaica’s final appellate court.

First Instance

In Lescene Edwards v R, the question was whether Edwards, a former police constable, was guilty of murder. In 2003 (note the year), Edwards was charged with the murder of Aldonia Harris-Vasquez. On one theory of the case, presented by the Crown, Edwards shot and killed Harris-Vasquez. On another, presented on behalf of Edwards, Harris-Vasquez took her own life. Both theories had points in their favour and points against them.

At first instance, in the Jamaican Supreme Court in 2013, the jury found Edwards guilty of murder. The judge, whose transcript of the case was extensive, sentenced him to 35 years imprisonment. The Jamaican Court of Appeal affirmed the first instance decision on conviction in 2018 but reduced the sentence to 20 years before eligibility for parole.

Final Appeal

On final appeal, the Privy Council overturned the decision and ordered Edwards’ release. One reason for the reversal was the availability of fresh evidence. At the Privy Council, experts testified on matters relating to gunshot directions and gunshot residue in terms which raised questions about the soundness of the original verdict. The fresh evidence was introduced only at the Privy Council stage and was offered by experts acting free of charge.

Another issue which influenced the Privy Council concerned the judge’s summing up at first instance. This, the Privy Council concluded, was too heavily weighted in favour of the prosecution’s approach and could have had an impact on the fairness of the case, a point not taken by the Court of Appeal.

The Privy Council took critical note of the time between the incident leading to Harris-Vasquez’s death and the decision of the Court of Appeal. The final court also raised the question of compensation for Edwards for the circumstances in which he found himself from 2003.

The CCJ?

Arising from these facts the argument has been proffered that the CCJ should not be accepted as Jamaica’s final court. It is said, for instance, that the Jamaican courts make errors which are somehow linked to untoward interference in the judicial process.

What, though, does the Lescene Edwards case actually tell us about the CCJ? On the view that recommends itself to me, the answer is very little indeed. To be clear, in this case the Privy Council was not sitting in judegment of any action taken by the CCJ. Rather, as highly summarised above, the final court passed judegment on the Jamaican Supreme Court’s decision and on the Court of Appeal’s affirmation of that decision.

We do not know how the CCJ would have addressed the issues in the case, and it is not at all valid to extrapolate any CCJ conclusions from lower court decisions. To do so would be mere speculation. At best, the informed critic could compare the general approach of the Privy Council and the CCJ on the treatment of criminal evidence, but that is not what has taken place to date.

Fresh Evidence

It should also be recalled that a key part of the decision — the fresh evidence — was before neither the judge at first instance nor the Court of Appeal; for, as was pointed out by the distinguished counsel for Edwards, the evidence of the experts was unavailable at earlier stages in the case because the accused could not afford to pay for expert (foreign) assessment on some matters. This highlights is a systemic problem about the means of gathering evidence at the lower court level — but it does not tell us about the capacity of the CCJ any more than it does about the Privy Council.

Likewise, the long delay in bringing the matter to justice is indeed problematic. But this, again, seems unrelated to whether the Privy Council or the CCJ should be our final court. The delay pertained to the work of the courts below the Privy Council and the CCJ.

Overall, therefore, the link between the Lascene Edwards case and the CCJ debate is not convincingly established. Perhaps the suggestion is that problems concerning the lower judiciary in the Caribbean are more likely to be replicated in the CCJ than in the Privy Council; but if this is the point, then, persons so advocating need to justify their position. Various arguments may be considered; my point here is just that this very sad case concerning Edwards and Harris-Vasquez gives no guidance concerning the CCJ.

Roe v Wade

A second court matter now in the news concerns the longstanding issue of abortion in the USA. As is well known, the US Supreme Court in the controversially famous case of Roe v Wade (1973) held that no US state may bar abortion rights in the period preceding the end of the second trimester of a woman’s pregnancy. In 1992, in Planned Parenthood v Casey, the decision in Roe v Wade was largely upheld, turning on a concurring judgment by three justices who had hitherto been considered by many to have serious reservations about abortion rights (Justices Souter, O’Connor and Kennedy).

These judges supported retention of abortion rights in Roe v Wade primarily with reference to the doctrine of stare decisis – in essence, the previous judgement should stand because numerous American women had built their lives on the possibility of having abortions, if necessary. They, therefore, had an expectation that the law would remain unchanged.

Dobbs v Mississippi

The US Supreme Court, with its membership completely changed since Casey and with an identifiable conservative majority, now has the question of Roe v Wade before it once again, in the case of Dodds v Mississippi Department of Health et al. But last Monday, matters may have come to a premature head when Politico Magazine released the first draft of an opinion in this case ostensibly written for the majority by Justice Alito. The draft would overturn Roe v Wade in no uncertain terms. It states, inter alia:

“Stare decisis … does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences” (pp 5-6).

The Leak

We will see whether this draft opinion eventually reflects the final will of the US Supreme Court. For now, two points may be noted. One is that if the CCJ ever had such a leak before its decision in a major case relating to a highly controversial matter, we would never hear the end of it. The leak would evoke a flood of criticism.

The other is that Alito’s dictum quoted above is undoubtedly tough and combative. And it reminds us that at the level of the highest courts decisions are not necessarily final because they are right, they are right because they are final – a point recently made by Justice Brooks, the President of the Jamaican Court of Appeal, speaking extrajudicially.

The leak also confirms that even Homer nods. The US Supreme Court has a long and largely distinguished track record, and with this foundation, it can withstand the latest problem. The CCJ is yet to develop an extensive record, but it is still worthy of fair assessment. It may have problems, but the Lescene Edwards Case is not really one of them.

Stephen Vasciannie, CD, is Professor of International Law at the University of the West Indies, Mona. He is a former Jamaican Ambassador to the USA.