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Friday, July 25, 2014
Trinidad & Tobago Guardian Online
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Lawyers on CJ’s call for end to jury trials: System not quite ready
Only a madman or a dictator would want to abolish trial by jury. It is the only aspect of the criminal justice process in which ordinary citizens have a say. Judges are not incorruptible or infallible. This was the consensus among criminal lawyers whom the T&T Guardian interviewed on suggestions by Chief Justice Ivor Archie that the jury system should be abolished. Most of them firmly disagreed.
Some, on the other hand, felt juries can make decisions totally contrary to the evidence, based on threats, and the absence of a jury system might not necessarily adversely affect a case. Archie’s suggestion comes 170 years after the jury system was introduced into T&T by the British. The system of trying criminal matters by a jury remains in the former motherland and in other developed countries like the United States and Australia.
The CJ’s call to end the system was made at the June 14 symposium in honour of the late Dana Seetahal, which was titled “Re-engineering the Criminal Justice System.” It follows on another suggestion he made last year at the opening of the law term, in which he asked for the reformation of the jury system.
Noting recently that 500 people are awaiting trial for murder, and telling of lengthy delays in the criminal justice process, he said, “I know I am sailing into choppy waters but I have to say it: we have a jury, which is the most inefficient way for conducting a trial. “Abolish juries and take a serious look at our words of evidence, in particular the rule of law, against hearsay.” Archie’s call was endorsed by Criminal Bar Association member Gilbert Peterson, SC.
“I also think we need to eliminate jury trials, because you have a jury there sitting for months listening to evidence. “But you are telling them complex concepts that law students will take years sometimes to understand,” Peterson said. Endorsing a call by Attorney General Anand Ramlogan for special juries, Peterson said, “I think it would be advancing the system if you are able to eliminate juries.”
Legal sources believed the idea of abolishing juries was coming from within the Government and was being supported by the CJ and Peterson. But many of their colleagues at the criminal bar, and others in different aspects of law, disagree, some citing that the very law schools they attended taught that juries were to be regarded as a “sacred cow.”
Moves to do away with juries are also being made in Guyana. The Guyana Times recently reported that the criminal bar association there is urging a review of the jury system. Guyana’s Attorney General and Legal Affairs Minister Anil Nandlall said society had lost confidence in the jury system and his government would be taking steps to reform it this year.
History of juries
Up until 1844, all police stations in T&T served as courthouses and magistrates travelled from one station to another to hear cases. In October 1844 trial by jury and the English statutes were introduced into Trinidad. An ordinance was established to introduce trial by jury and to make other provisions for assimilating the laws of the colony relating to criminal offences to the laws of England.
Some pluses to removal
Former head of the Public Service Commission and founder of the 50-year-old family law firm KR Lalla and Co, Kenneth Lalla, said he believed accused people should be tried by their peers, not anybody else, to ensure transparency and fairness. Lalla, who published a booklet many years ago on jury service and distributed it free of charge, said juries were a symbol of public involvement in the justice system.
Over the years, juries have proven to be quite satisfactory, he said, and while it might be under review in the UK and the US, those countries may or may not abolish the system. He added, though, that it was a complex issue and abolishing the system may be the way to go. “Jurors may want to deliberate longer than a judge,” he said, referring to delays in cases.
San Fernando attorney Lena Subiah, who opened her own firm after graduating from the Hugh Wooding Law School recently, believed there are pros and cons in abolishing juries. She said lawyers are taught the jury is sacrosanct and noted that those convicted generally accept the views of the jury. She added, however, “In small countries where jurors are known, you run the risk of jury tampering. In the Abu Bakr trial, for instance, the whole jury system was under siege because of the fear factor.
“You never heard of a local judge being gunned down after a judgment. Judges are generally well protected. But the average citizens, who comprise juries, cannot afford that kind of protection.” Subiah also added jurors sometimes hardly understood legal issues.
Totally against abolition
“I am totally against it,” said Israel Khan, SC. “Only a madman and a dictator will want to abolish trial by jury. It is an opportunity for ordinary, God-fearing citizens to participate in the criminal justice process. They look at the facts and evidence. “How will letting judges alone decide criminal cases clear backlogs?” Khan added, “They feel juries sometimes return a verdict not in keeping with evidence (because of fear and other factors) and could be corrupted.
“Are they saying judges cannot be corrupted or be fearful? I want to know why they want this.” Khan said this was not the first time such a suggestion had been made and recalled that an attorney general in the last PNM administration, John Jeremie, SC, also made a similar call. Attorney Jagdeo Singh, one of the state attorneys at last year’s commission of inquiry into the attempted coup, also disagreed with the CJ’s suggestion.
“I don’t think the jury system adds any complexity to the criminal justice system. We need to look at more effective case management to deal with backlogs.” Singh said juries are used in developed countries all over the world, including some parts of Canada, Britain, the US and Australia. Former attorney general Ramesh Lawrence Maharaj, a longstanding criminal lawyer, said juries were regarded as a safeguard for a fair trial.
“It is based on the presumption of innocence of an accused person. Abolishing juries is undemocratic and not in the interest of public justice.” Maharaj said backlogs of cases were no reason to abolish juries and added that delays in judgments by judges were one cause of the problem. “If judges are left to decide cases, will it increase or decrease delays?” President of the Chaguanas Lawyers Association Richard Sirju agreed with his colleagues that juries should not be abolished.
“It is the right of an accused person to be assessed by his peers as far as the facts of the case go. “A jury is responsible for assessing facts. Judges are responsible for assessing the law. If you take away the jury’s role and put it in the hands of a judge, you run the risk of having a one-sided function. “Right now, we have a balance. The social aspect of justice is brought into the mix. A people-centred criminal justice system is absolutely essential,” Sirju said.
Citing the Brad Boyce case, he said owing to a legal technicality, the case was never put to the jury and the judge (Herbert Volney) dismissed the charges. Sirju said the court of public opinion disagreed with the outcome and Volney himself on the hustings years later, said he made a mistake. Sirju also recalled that Yasin Abu Bakr and 113 Muslimeen were freed by the Privy Council on a legal technicality after they staged the July 1990 attempted overthrow of the government.
“These are examples where the legal aspect trumped the jury, to our detriment.” Former PNM minister Fitzgerald Hinds, an attorney, said the party had not caucused on the issue as yet and did not have an official position. Hinds said he was sure the PNM is prepared to take all reasonable action to improve the criminal justice system and will give serious consideration to the issue if it comes to Parliament.
Giving his own opinion, he said in many countries judges alone, without juries, decide serious criminal matters. “In the magistrates’ courts here too, judges decide cases. It is the indictable matters that are for juries.The absence of juries does not adversely affect cases. “In Ireland, juries were abolished because they were tainted by threats and could have made decisions totally contrary to the evidence.”