Judge Malcolm Simmons Explains The Role of the Judge

Judge Malcolm Simmons explained that the role of the judge is to decide whether, as between two opposing parties, the party that is advancing a claim has discharged the evidential and legal burden incumbent upon him if he is to win. 

A judge has to decide what happened, to piece together the story and attempt, on the basis of all evidence available produced in court, to reach a sound factual conclusion.

It is crucial to make positive findings of fact.

Judge Malcolm Simmons explained that the judge will be faced with subjectivity, chance, perjury, a risk of bias, the danger of false impression, the honest witness who might be frightened or irascible; the false witness who appears credible; the honest but mistaken witness; deal with dead or missing witnesses, missing or destroyed documents.

Hearings should be conducted in public and reasoned decisions given.

Under Article 6 of the ECHR all courts are required to give reasons for their rulings and judgments to demonstrate that a fair hearing has been conducted before an independent and impartial tribunal.

Judge Malcolm Simmons explained that reasoned decisions should be in plain language in order to demonstrate that the judge has used a process of structured decision-making rather than reaching a decision arbitrarily.

Reasoned judgments assist the losing party in understanding the judges decision.  They also assist the appellate court that may hear an appeal.

Judge Malcolm Simmons explained how judges assess the credibility and reliability of evidence by asking how probable an account is in light of agreed facts or uncontentious evidence, of contemporary documents and of the evidence of independent witnesses whose impartiality is not in question.

At the outset of the decision-making process the judge must have in mind which facts are agreed and which are significantly in dispute.  The judge must be able to formulate a sufficiently detailed reason for preferring one witness to another. 

So, how do judges set about their fact-finding role? Most judges will first determine what facts are agreed. Agreed facts form the basis from which to establish the truth between conflicting events.  Assertions of fact are not evidence unless admitted or supported by evidence.

Judge Malcolm Simmons explained that if the judge has read the pleadings and is familiar with the case he will be consciously looking for omissions, conflicts and ambiguities in the documentary evidence.  This will show the judge the margin of dispute and the materiality of the evidence.

Inferences of fact may properly be drawn from findings of fact.  For example, the absence, without proper explanation, of a document usually available to a party to prove a contested matter would create a legitimate adverse inference.

Judge Malcolm Simmons explained that some judges claim to decide intuitively what should be the outcome of a case and then go on to analyse the law in such a way as to justify that intuitive decision. Other judges will start from the anchor point of agreed facts and proceed to a logical development of the necessary findings.  They do this by establishing a pattern of decision-making in which they decide each conflicting fact and apply the law to it separately and then move on.

Judge Malcolm Simmons has been a judicial trainer for more than 15 years and has lectured around the world.

Judge Malcolm Simmons and Independence of the Judiciary in the Philippines

In 2000, the Supreme Court commenced the implementation of the Action Program for Judicial Reform (‘APJR’), a multi-year plan (2000–2006) that identified, prioritized, and implemented judicial reform.

Judge Malcolm Simmons explained that the APJR received significant external support for a wide range of projects that focused on improving judicial efficiency, judicial independence, fiscal autonomy and accountability, and access to justice.

After the APJR ended in 2006, the implementation of the reforms began and continued focusing on (i) making case resolution more efficient (the establishment of case management information systems in the Supreme Court and appellate courts and revision of the rules of procedure); (ii) improving court integrity (the conduct of an integrity review of court operations); and (iii) increasing access to justice (establishment of small claims courts and deployment of mobile courts).

Judge Malcolm Simmons explained that decision-making in the judiciary has been highly centralized. The inefficiencies and delays inherent in this system of centralized decision-making and resource allocation are often associated with poor infrastructure and inadequate operating systems. Decisions that can be more effectively handled in the regions, such as personnel and procurement of supplies, have to pass through the bureaucracy in the central offices, causing bottlenecks and unwarranted delays in the delivery of services to court personnel in the regions. In response to this problem, the judiciary began decentralizing court administration in 2007 through a pilot Regional Court Administration Office (‘RCAO’) in judicial region 7. Utilizing RCAO as a tool of decentralization, it is expected that court personnel in the regions will be provided with better services, which should in turn result in better administration of justice to court end-users. Currently, the Office of the Court Administrator is committed to incremental decentralization starting with procurement responsibilities.
 
Judge Malcolm Simmons explained that courts in the Philippines have a significant backlog of cases. On average, the annual caseload of lower courts from 2004 to 2009 was approximately 700,000 cases. Given the resources, including the number of judges, courts staff, availability of courtrooms, etc it is estimated that it will take approximately twenty years to clear that backlog while new cases continue to enter the system. A backlog reduction strategy should be considered.

Because of the backlog of cases pre-trial detention often exceeds five years. Approximately 95% of those in detention are awaiting trial.  This situation cannot be allowed to continue. As well as a backlog reduction strategy courts should consider alternative measures to detention for those awaiting trial.

Judge Malcolm Simmons explained that in order to meet some of these challenges the Philippine Development Plan (PDP), 2011–2016 envisions reforms to: (i) strengthen the oversight bodies; (ii) foster effective and speedy resolution of cases in courts and quasi-judicial bodies; (iii) reduce the cost of litigation; (iv) avoid law suits involving Government contracts; (v) enhance the integrity and competence of justices, judges, court personnel, and all other officers of the judiciary and quasi-judicial bodies; (vi) increase resources for justice sector agencies and quasi-judicial bodies; (vii) improve access to justice of all sectors of society, particularly vulnerable groups; (viii) promote the use of alternative dispute resolution; and (ix) institutionalize existing justice sector coordination mechanisms.

Judge Malcolm Simmons has been a judicial trainer for more than 15 years and has lectured around the world. 

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Judge Malcolm Simmons Explains Anonymity Orders Under the Pakistan Criminal Code, Islamabad June 2018

“Judge Malcolm Simmons is an accomplished speaker”

                                                                            

                                                                                                     High Court Judge

Every defendant has a right to a fair trial. An important aspect of a fair trial is the right of the defendant to be confronted by, and to challenge, those who accuse him or her.

Judge Malcolm Simmons explained that an Anonymity Order is therefore a draconian step and should only be issued if there are grounds to believe that the court would not otherwise hear evidence that should be available to it in the interests of justice; that other measures falling short of anonymity would not be sufficient; and that the defendant will have a fair trial if the order is made.

Anonymous witness testimony is not necessarily incompatible with the defendants’ right to a fair trial - even when it is the sole or decisive evidence against the defendant. 

Whether the measures used to allow a witness to give evidence anonymously in any particular case would make the trial unfair has to be evaluated with care on the facts of each case.

Judge Malcolm Simmons explained that the effect of a Witness Anonymity Order is to prevent the defendant from knowing the identity of a witness. Without this information the defendant’s ability to investigate and challenge the accuracy or credibility of the witness’s evidence may be limited.

Judge Malcolm Simmons explained that when considering whether to make a Witness Anonymity Order the court will consider to what extent the defendant needs to know the identity of the witness in order to challenge the witness’s evidence effectively. This question will often be central to the question of whether, having regard to all the circumstances, the Witness Anonymity Order sought would be consistent with a fair trial.

The interests of justice include the interests of the victim or victims, the interests of the witness or witnesses, the interests of the defendant and any co-defendants and the wider public interest.

Judge Malcolm Simmons has been a judicial trainer for over 15 years.  He has lectured around the world.

An extract from a seminar presented by Judge Malcolm Simmons.

Judge Malcolm Simmons Talks About Fighting Corruption Wherever We Find It

Judge Malcolm Simmons described how corruption has a disproportionate impact on the poor and most vulnerable, increasing costs and reducing access to services, including health, education, and justice. 

Corruption erodes trust in government and undermines the social contract. This is cause for concern across the globe, but particularly in contexts of fragility and violence, as corruption fuels and perpetuates the inequalities and discontent that lead to fragility, violent extremism, and conflict.

Judge Malcolm Simmons described how corruption impedes investment, with consequent effects on growth and jobs. Countries capable of confronting corruption use their human and financial resources more efficiently, attract more investment, and grow more rapidly.

Judge Malcolm Simmons explained that corruption comes in different forms. It might impact service delivery, such as when police officers ask for bribes to perform routine services. Corruption might unfairly determine the winners of government contracts, with awards favoring friends or relatives of government officials. Corruption might affect more fundamental issues including how institutions work and who controls them. 

Judge Malcolm Simmons explained that successful anti-corruption efforts require a holistic approach including politicians and senior government officials, the private sector, citizens, communities, and civil society. The methods employed to fight corruption must be tailored to create the most significant impact. 

The World Bank Group has suggested the following:

First, every effort must be made to meet corruption at the gate, putting in place institutional systems and incentives to prevent corruption from occurring in the first place. This includes mitigating and detecting potential risks, as well as addressing weaknesses in the institutions critical to this effort.

Second, prevention must be built on the shoulders of credible deterrence, relying on accountability and enforcement mechanisms sufficiently strong to send a message to potential wrongdoers of the potential cost of their misconduct. Deterrence can take many forms beyond criminal consequences, including administrative and civil penalties and the Bank has created world-class sanctions and debarment mechanisms to tackle corruption in its projects.

Finally, it is critical to understand and influence the evolution of norms and standards that can change incentives, strengthen public institutions, and thus move the needle towards positive perceptions of government needed for longer-term and sustainable efforts to combat corruption.

Afghanistan is making inroads to root out corruption, improve the management of its public finance, and make its procurement system more transparent. The country’s National Procurement Authority (NPA) was instrumental in developing a transparent procurement system. The early data and information on procurement processes are accessible to everyone on the NPA website. Robust oversight and monitoring have helped the government save about $270 million.

In Brazil, a data analytics trial in the northeastern state of Ceará explored how mobile surveys and scientific techniques can be used to uncover suspicious patterns of interactions between public service providers and users. In the first experiment, patient feedback provided through mobile phones was combined with administrative data from hospital services. The second experiment investigated how to survey and administrative data could be used to find anomalies in the environmental licensing process. While bribery data collected through mobile phones offered inconclusive results, administrative data were used effectively to identify corruption red flags.

In Guinea, for the first time since the country gained independence in 1958, a register enrolled all of Guinea’s employed civil servants in 2015 by implementing a biometric identification system to conduct a census of civil servants to eliminate fictitious or fraudulent positions and potentially save more than 1.7 million dollars through the discontinuation of salary payments.

The Dominican Republic formed the Participatory Anti-Corruption Initiative, a forum that gives public officials, civil society, private sector leaders, and other committed citizens a unique opportunity to tackle corruption and take on powerful interest groups in many areas, including medicine and procurement. By 2014, reforms in this area had lowered drug prices, improved medication quality and reduced public spending by 64 percent.

Judge Malcolm Simmons has been a judicial trainer for over 15 years and has lectured around the world.