Inconsistencies in the collection of cash payments in a number of Magistrate’s courts on New Providence, and defendants on conditional discharge being guided to utilize a private counseling firm for which court staff was collecting $750 to $1,500 per defendant, is a matter that ought to be given “serious attention” by the management of the judiciary, according to Auditor General Terrance Bastian in his report dated June 30, 2020.
The report covering the period July 1, 2016 to December 31, 2019, arose at the request of the judiciary’s management, stemming from Bastian’s January 9, 2020 audit report on a myriad of court sentences inclusive of conditional discharge, probation and “ordered to attend counseling”.
A typical condition required for a defendant under a conditional discharge or probation order, is that the individual is required to attend counseling, which is intended to correct the deviant behavior which brought the individual to court in the first instance, Bastian noted.
He indicated, “Where the sentence ordered by two courts involved counseling, the defendant was directed to enroll in and pay the counseling institution prior to being released from custody, or face incarceration.
“However, this is not the established process adapted by the magistrates and the Department of Rehabilitative and Welfare Services (DRWS). The required practice entails communication with DRWS to administer the counseling process.”
The audit report states that court clerks in court numbers one, two, five, six, eight, nine, 10 and 11 were interviewed on the established procedures for those on conditional discharge ordered to attend counseling.
Bastian said, “During our interview with the court clerks, we found that they were familiar with the procedures listed above.
“We further inquired as to whether collection of cash was a part of their job function. The court clerks denied that it was; and stated that all cash transactions take place at the cashier’s window. However, stakeholders advised the audit team that several court clerks were collecting cash on behalf of a counseling institution,” he continued.
Cash collection is not a function of the court clerks, Bastian noted in his report.
According to the report, established policies and procedures dictate that defendants on conditional discharge who are ordered to attend counseling at an institution of one’s choice, are to be given full disclosure with which they can make an informed decision about the counseling service they wish to choose.
But Bastian said that according to firsthand information from court officials and stakeholders regarding inconsistencies in two courts, “Defendants were not receiving full disclosure in order to make an informed decision in selecting a counseling institution during the court proceedings. However, the court dockets indicated that the defendants were given counseling institution options.”
He added, “The defendants’ family felt pressured to enroll and pay for counseling at the end of the defendant’s court proceedings.”
The auditor reported that most notably, one counseling service was used more than others for those who were granted conditional discharge and ordered to attend counseling at an institution of his choice.
Bastian, in his conclusions, said, “The defendants were forced to comply with payment for counseling services on the same day that their court proceedings ended. Counseling enrollment costs ranged from $750 to $1,500 and failure to pay these costs would result in incarceration.
“The magistrate’s support staff were identified by stakeholders as the individuals acting jointly or alone in collecting cash payments and issuing receipts on behalf of a counseling institution paid by the defendant’s relatives,” he noted.
Continuing, Bastian advised, “As a result of our findings, we recommend that this matter be given serious attention by management of the judiciary and corrective measures be taken and implemented, as the reputation and integrity of the judiciary is important to the public trust of the Bahamian people.
“This requires good governance and consistency in all aspects of court administration throughout the court system.”
Bastian’s audit team also recommended that court clerks immediately cease the collection of cash earmarked for counseling services.
According to the report, defendants before two courts who were granted a conditional discharge, were also ordered to pay a queen’s fine.
The defendants who were forced to pay for counseling services to avoid incarceration, “were given the option to pay the queen’s fine at a later date; therefore deferring the collection of government’s revenue”.
Results from a randomized sampling of the courts revealed that at times when counseling at an institution of choice was ordered, “notwithstanding the nature and seriousness of the offence, counseling was being ordered at a specific counseling institution by two courts”, Bastian indicated.
Regarding case files, he advised, “In many instances, we observed that defendant’s files did not include the name of the counseling institution, neither a completion report.”
Representatives from three private counseling firms were interviewed, and Bastian reported that the representatives said they are qualified, adequately staffed and willing to assist and render counseling to defendants who are unable to afford their services, and that they felt “they were being underutilized”.
The report stated, “We noted that there were five government-owned counseling institutions based on information received from the DRWS. We requested but were not provided at the time of this audit review, an official approved listing of private counseling institutions from the Department of Social Services.”
The audit team recommended that the Department of Social Services establish an official approved listing of all private counseling institutions.
The team further recommend that defendants’ files be properly maintained, and that defendants be given full disclosure with respect to counseling institution options during their court proceedings.
The same ought to be duly noted in the court records, the audit team advised.