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Wednesday, December 18, 2013
Trinidad & Tobago Guardian Online
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CJ's formula for court backlog: Critical changes
The abolition of jury trials for all criminal offences and the decriminalisation of marijuana are two crucial ideas suggested by Chief Justice Ivor Archie as possible solutions for improving the efficiency of the criminal justice system. The suggestions came yesterday as Archie delivered his speech at the opening of the 2013/2014 law term at the Hall of Justice, Port-of-Spain. Saying the criminal justice system was in crisis and a leap of faith is needed to rectify it, Archie said: “Nothing should be left off the table. “Discontent, by itself, will not move us unless two things are also present: Accepting that we have the power to change things and faith that there can be a better future.” Giving an update on the current state of the system, Archie said there were 575 people in remand awaiting trial in respect to 468 murders.
One of the major suggestions Archie offered for reducing the backlog of cases was the abolition of jury trials for all criminal offences. Jury trials have been abolished in several other countries, including South Africa and Singapore, and for specific offences in the United Kingdom. The issue of abolishing jury trials for serious criminal offences, such as murder and fraud, was raised in Parliament by former National Security Minister Jack Warner earlier this year. However, Archie yesterday went a step further, saying: “Who are we appeasing? Where is the logic in devoting more resources to the less serious offences that have less impact on the accused’s life and liberty?” Archie noted that jury trials had become too inefficient and expensive and may not be fulfilling their intended purpose of providing “truer” verdicts.
“In my experience, where the issue is the determination of the legal issue of guilt or innocence based on the assessment of the weight and reliability of complex evidence, for which jurors are not trained, that supposed advantage is far less significant than might be imagined,” Archie said. He refered to jury tampering and intimidation, the annual costs incurred by the Judiciary for sequestering juries and a lack of transparency in jurors’ decisions as key factors in support of the move to abolishing jury trials. “At least a magistrate or single judge is obliged to give reasons for their decision that can be analysed and critiqued,” he added. He pointed out that there was no constitutional bar to the abolition of jury trials, as the Constitution only guarantees “a fair and public hearing before an independent and impartial tribunal.”
On the pros of decriminalising marijuana, Archie said: “In an economy where the State is the major employer and a criminal conviction is a bar to employment, we may be pushing minor non-violent offenders into criminality when they can be saved.” He described the economic and social consequences of incarcerating people for possession and consumption of marijuana as immense and suggested drug treatment courts as a viable alternative. “Moreover, it is now appearing that the consensus about many of the assumptions about the effects of marijuana in particular is unraveling,” he said. He called on policymakers to seriously consider his suggestion, adding the focus should be more on drug trafficking and not drug consumption.
“The burden on the police and prisons and the courts, in terms of cost and human resource, will be lessened if we focus on the scourge of trafficking, but as long as we have laws on the books we have to enforce them,” Archie said. He also said addiction was as much of a public health issue as it was a criminal problem. “This is not a moral judgment, although one might observe that marijuana consumption probably wreaks no more havoc than alcohol addiction but we provide support for one and punishment for the other,” Archie said. He cited a progress report of a participant in the Judiciary’s pilot Drug Treatment Court programme, currently in existence in San Fernando, as evidence of success in providing treatment for drug users.
The CJ also called for the increased use of plea bargaining under the Plea Discussion and Plea Agreement Act. “With proper training, the employment of existing and amended legislation will go a long way in reducing the backlog,” he added. He said there were three main reasons why the legislation was rarely used: Uncertainty or perceived inconsistency in sentencing, concerns from prosecutors regarding improper influence and statutory mandatory minimum sentences for some offences. He said the first two concerns have been alleviated by the Judiciary’s sentencing guidelines publication and a code for guidance of prosecutors, which has been adopted by the Director of Public Prosecutions (DPP). Archie said mandatory minimum sentences were interfering with the court’s ability to tailor sentences to the specific circumstances in a case. He said reform also was needed in Legal Aid and suggested the establishment of a permanently staffed Public Defender’s Office. “Despite increases in the fees payable on legal aid briefs, there are apparently still not many attorneys who regard a substantial legal aid practice as financially viable,” Archie said.
He also called for an increase in the forensic evidence-gathering capabilities of investigative agencies. “We can’t have 21st-century justice without 21st-century police investigations and that requires investment in and facilities with the latest available technology,” Archie said. Addressing Archie’s concerns after the ceremony, Prime Minister Kamla Persad-Bissessar said her Government already had embarked on several of the suggestions he raised. “He (Archie) is pushing on an open door on many of the suggestions he made,” Persad-Bissessar said.
She said she supported the abolition of jury trials and stated that Government was presently working on a draft bill on the issue. Asked about her views on decriminalisation of marijuana, the PM said the suggestion would be considered but did not give a firm stance on the issue. “Some consideration will be given. I can’t give you an answer, yea or nay. It is something we will look at,” Persad-Bissessar said.
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