President of the Law Association of T&T (LATT), Douglas Mendes, SC, says it may be time to re-evaluate current manner in which judges are appointed, with a view to ensuring greater...
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Jury system: Time for a verdict?
Two round voting? Love it or loathe it, Kamla’s Government is ready to push through radical change when it wants to—just a couple of weeks, bounce, and home. So what’s next? In last weekend’s MORI poll, 86 per cent of the smallish sample put crime and policing as a top-line issue, way ahead of Constitution reform, which scored just 17 per cent. If it’s time for more fast-track changes, criminal justice reform would be a strong starter.
“We simply cannot carry on the way we are going,” says Chief Justice Ivor Archie. Along with other remodelling, he wants to abolish the jury system, seen by many as a cornerstone of the law since England’s King John signed the Magna Carta, not quite 800 years ago. He called for an end to jury trials almost 12 months ago, at last September’s law term opening. That change would not, he argues, need a special majority. The Constitution simply upholds the right to a fair trial.
Juries, he argues, slow the pace and clog the courts. And clogged they are. Last year, there were 406 murders. More than 500 jailed murder suspects await trial. There are just ten judges for criminal cases. Trials last weeks, months—sometimes up to a year. Do the math. Belize in 2011, abolished juries for murder cases and some other trials. Prime Minister Dean Barrow—himself a lawyer—argued that for gangsters, buying or intimidating jurors was “the easiest thing in the world.”
In the Turks and Caicos Islands, the big issue is not murder, but white-collar crime. A 2009 inquiry by Sir Robin Auld, a British former appeal court judge, found a “high probability of systemic corruption,” and a “Hollywood lifestyle” from the premier, Michael Misick. In line with Sir Robin’s recommendations, the British governor in 2010 introduced a procedure for trial without jury.
Misick was extradited from Brazil in January. With four former cabinet ministers he faces a corruption trial, set for December 1. In this tiny community, he still has enthusiastic support; the 7,377 voters narrowly re-elected his Progressive National Party in 2012. His brother Washington is finance minister.
The British special prosecutor Helen Garlick says it would be “very, very difficult” to find an impartial jury. Misick will face a no-jury trial. His supporters complain that a colonial oppressor is trampling on his civil rights. India, South Africa and many other Asian and African Commonwealth countries long ago abolished jury trials. In Northern Ireland, judge-only Diplock courts tried alleged terrorists from 1973 to 2007.
An 18th-century English judge, Sir William Blackstone, called trial by jury the "principal bulwark of our liberties." Caribbean legal systems have deep English roots. Judges rule on points of law. Jurors weigh evidence and deliver the verdict. But weighing facts needs more than a sense of smell. A trial judge must explain fine legal points which graduate law students find it hard to grasp.
Calling the count is hard enough in a routine stabbing; with complex financial fraud, it is a serious challenge even for well-honed accountants. Many educated professionals are exempt from jury service. Archie has concerns about the “functional literacy” of the remaining pool. He talks of a murder case where a jury foreman misunderstood the word “unanimous,” and mistakenly reported a guilty verdict; a presidential pardon was needed.
With a lively gossip network and active media, it can be hard to find unbiased jurors; intimidation is another danger. In the 1996 Dole Chadee murder trial, the defence challenged 205 potential jurors. Substitutes were pulled from the Chaguaramas beach.
No-jury trials place the full weight of scrutiny on the judge, who has to decide factual as well as legal points. In a Belize murder trial last month, one key witness had been shot dead a year after the killing, but left written testimony. Another—accused by the defendant of being the real culprit—was murdered a month before the trial. Based on the available evidence, the judge decided not to convict. The victim’s family was devastated. That call would previously have been the jury’s.
In non-jury trials, judges will be exposed to accusations of bias and prejudice. Indeed, rulings can be controversial even within a jury system. Remember Brad Boyce? But unlike jurors, judges must present reasons for their rulings. The Brad Boyce ruling was eventually reversed by the Privy Council.
Judges need not work alone. In some legal systems, lay assessors sit alongside, willing and able to advise, take issue where necessary, and stand their ground. In some cases, they provide useful medical, accounting or other expertise. We don’t have to look too far: this country’s Industrial Court works more or less on these lines.
“Abolition of jury trials would not be a cure-all,” says Archie. He argues that it should go hand-in-hand with a structured plea bargaining system and reform of procedural rules. There’s a strong case for a swift and structured consultation, followed by well-drafted reforms.