Evolution of the judiciary in the BVI

October 1982, was an important date in the history of the Judiciary in the British Virgin Islands for it was then that the Territory was assigned its first resident High Court Judge.  Prior to that date a visiting judge would sit here once a year and later twice a year.  The last visiting judge was the late Mr Justice Cecil Hewlett and the first resident judge was Madam Justice Monica Joseph.

I am getting ahead of myself for in order to appreciate the present it is necessary to trace the development of the system from the 1950’s which I have been able to do with the assistance of some public officers of that era. 

The era of the 1950’s
Prior to the late 1950’s, there was no resident lawyer at the public or private Bar of the Territory.  Members of the public were served by legal practitioners from Antigua and St. Kitts.   Such  lawyers  included   Sydney   T.   Christian, J. Rowan Henry and the two Harney brothers, Egbert and Harold.  Harold Harney later set up a legal practice in Tortola in 1960 which evolved into the present firm of Harney Westwood & Riegels.

The first resident lawyer to grace the public Bar was Hermon Besson who some years later was appointed a High Court Judge in his native Trinidad.  Besson came to the BVI in 1956 to take up the appointment of Legal Assistant.  The Attorney General was based in Antigua and the Legal Assistant functioned under his direction.  After Besson demitted the post of Legal Assistant, he commenced practising privately in the Territory but he did not remain.  It was after that that Harold Harney arrived and set up his practice. 

Magistrate’s Court
The BVI at the time, was a Presidency within the Leeward Islands Federation.  The Governor resided in Antigua and the Territory was administered by a Commissioner.  The Commissioner was not the Queen’s representative such as the Governor is today.  He was a subordinate of the Governor and reported directly to him.

The Commissioner, who was an Englishman, was a layman.  No one can recall that post ever having been filled by a lawyer.  Nevertheless, in addition to his duties in administering the Territory, the Commissioner performed the duties of magistrate and tried all summary cases, except those that required an interpretation of a point of law.  In those instances, a trained magistrate was sent from Antigua.

It would appear that the first case of domestic violence to be tried in the BVI was heard around the year 1953.  The story is told that the Commissioner, John A.C. Cruickshank during one of his strolls around the district heard the cries of a lady in distress and on investigating the cause, discovered a young stalwart striking his wife.  Mr Cruickshank, himself, was the person to have tried the case but, as he was now the investigator and a witness, two justices of the peace were appointed to hear it.  The two justices were Olva Georges (later Sir Olva) and I. G. Fonseca.  They found the defendant guilty and, in addition to the penalty imposed, he was severely admonished by Sir Olva who demanded of him never to do it again.  Apparently, he never did.

The last of the Commissioners was Geoffrey P. Allsebrook.  His term came to an end around the month of December 1959.  By that time a Magistrate’s Court was established under the Legal Assistant and it convened in a vacant room in the Agricultural Station which was located where the J R O’Neal Botanic Garden now stands.  The visiting High Court Judge also sat in the same room and, from all reports, the surroundings were unsatisfactory and evoked some rather harsh comments from the Honourable Justice Donald Jackson (later Sir Donald Jackson CJ) during one of his visits as a Puisne Judge (now High Court Judge).

The post of Legal Assistant was superseded by that of Crown-Attorney.  The first Crown-Attorney was Oliver Browne (later Oliver Browne, QC) who became Solicitor General of Barbados.  The Crown-Attorney simultaneously performed the functions of Magistrate, Registrar of High Court, Registrar General, Provost Marshal and Coroner.  With the appointment of the Crown-Attorney, the Commissioner ceased to function as a Magistrate.

As the legal service became more sophisticated the post of Crown-Attorney was superseded by that of Attorney General.  The first person to hold that post was Lionel Barker.  He was appointed on 01 July 1966.  The instrument appointing him was signed by Ralph T. O’Neal who was then Secretary to the Administrator. 

High Court
I mentioned that the High Court cases were heard by a visiting Judge until the appointment of Madam Justice Monica Joseph in October 1982 as the first resident High Court Judge.

Until the 1960’s, a High Court Judge visited the Territory once a year.  That visit occurred in April.  The society was very law abiding and Criminal cases were few. Whenever the Judge visited and there was no criminal work, he was presented with a pair of white gloves.  Criminal cases naturally took precedence over civil cases.  It would appear that both civil and criminal cases were disposed of in the space of a few weeks with none being traversed.  Such was the workload of the visiting Judge.

A visit once a year by a visiting Judge was hardly satisfactory as the following eye witness account illustrates.  The visiting Judge on the occasion in question was the redoubtable Justice Donald Jackson. Two men were charged before him.  They were engaged in fracas of some sort the previous May and both were arrested. The Judge had already left the territory at the end of April. One of the men was granted bail by the police and the other was denied bail and, consequently, the man had to spend a full year in custody until the Judge returned the following April.  During this time, he could not attend to his domestic chores or care for his family. At his trial, he was found guilty by the jury and sentenced by the Judge  to a term of six months imprisonment.

Whether it was bravery on his part or whether it was out of sheer desperation and despair the prisoner asked the Judge, who was known for his daunting judicial demeanour, whether he could “say something”.  The Judge, dismissively, asked:  “What do you have to say?”  When he heard the sad tale that the prisoner related, he demanded that he repeat it.  The prisoner, despairingly, obliged.

Now it was the sergeant that became the object of judicial focus.  “Sergeant Paul”, demanded the Judge, “is the prisoner telling me the truth?”  There was a roar of silence from the Sergeant.  The Judge repeated his question.  Again he was met with a stony silence.  But Mr Justice Jackson was not the sort of person to brook nonsense of any kind and he firmly told the Sergeant that he would be committed for contempt of Court if he did not answer; whereupon the Sergeant feebly responded “Yes, Sir”.

The Judge administered an unforgettable judicial reprimand and no longer did he address the accused as prisoner at the Bar.  He said “Mr ---, pay a fine of one shilling, whenever you get it”.  It is understood that the accused is still alive and therefore he shall remain nameless.

In the early 1960’s however, it was clear from the growing work load of the Court that a single visit annually by a visiting Judge was no longer desirable  and the Judge began to visit during the months of March and October.  This continued until 1982 when Justice Monica Joseph was appointed the first resident Judge of the Territory.  In 1990, after sustained lobbying by the Bar Association a second resident Judge was appointed.

Court of Appeal
Significantly, it would seem that the Court of Appeal never sat in the Territory until 1967.  Appeals appear to have been heard in one of the Leeward Islands.  The reason for this could have been that appeals were few in number and did not warrant the incurring of the cost convening the Court here.  Another reason could have been that it was less costly for the parties if their appeals were heard in the island where their lawyers practised.  Whatever the reason, the Court of Appeal now sits regularly in the Territory twice a year, with an extra sitting if necessary. Indeed, some of the most complicated commercial cases originate in the jurisdiction.

The Bar is the most cosmopolitan in the Caribbean and some of the most eminent Counsel from the English Bar regularly practise here alongside the local practitioners.  This would never have been envisaged back in the 1950’s.

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Lewis S Hunte, QC