Trial by our peers a fundamental right

Trial by our peers a fundamental right

Bert
Samuels

Tuesday, September 29, 2020

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Trial by our peers is the fundamental right of every Jamaican citizen. Although not embodied in any written document, it is a right enjoyed, and fought for, by our founding fathers. The right of every Jamaican to sit on a jury and/or to vote in elections was attained only 76 years ago, and was fought for by our national heroes Paul Bogle and George William Gordon, who were not tried by their peers. We named our premier voting house, Gordon House, the Parliament, in honour of assemblyman George William Gordon. Gordon and Bogle must be turning in their respective graves to hear us about to have trial by judge alone. It took black people in Jamaica 106 years after freedom from slavery in 1838 to be able to vote freely in elections and sit in judgement of their fellow citizens, and here we are in 2020 easily willing to give up those rights.

Jamaica was granted full adult suffrage on November 20, 1944. Prior to that, the right to vote was determined by the amount of wealth or property a man held, and women were not allowed to vote at all. The new system extended voting rights to adults, irrespective of their race, gender, or social class. To vote one must be a registered voter. It was consequent on the attainment of adult suffrage that ordinary Jamaicans could sit as jurors. The 2011 Charter of Rights enshrined, for the first time in our constitutional arrangement, the right to be a registered voter. At section 3 (m) (i) it provides for the right of every citizen “who is qualified to be registered as an elector for elections to the House of Representatives, to be so registered”.

It could be argued that our right to be registered as an electorate feeds into the right to be tried by jury. If our framers guaranteed, for the first time, the right to be an elector, and it is from the list of electors that jurors are selected, then it is not a stretch that, by implication, trial by potential “voters” is a guaranteed right. So, adult suffrage in 1944 opened the wider door for trial by jury. It is noteworthy that, in reality, there is no such concept as trial by jury; it has always been trial by a judge sitting with a jury.

While I concede that there is no direct reference in our constitution of a right to trial of serious offences by a judge sitting with a jury, I laud Lord Devlin, quoted in the 2004 House of Lords decision in the case of R vs Connor and R vs Mirza, in his book, Trial by Jury (1956): “That trial by jury is more than an instrument of justice and more than one wheel of the constitution: It is the lamp that shows that freedom lives.”

Lord Steyn, in the said 2004 judgement, reiterated the importance of the jury system and opined that: “The jury is an integral and indispensable part of the criminal justice system. The system of trial by judge and jury is of constitutional significance. The jury is also, through its collective decision-making, an excellent fact finder. Not surprisingly, the public trust jurors. What public opinion would not tolerate are jury verdicts arrived at by perverse processes.”

The advent of COVID-19 has now presented its own challenges for the justice system. We have sought, through innovative digital solutions, to avoid breaches of the social distancing regulations in the delivery of justice. These include hearings done by Zoom, where lawyers attend remotely, and defendants – who have a right to a hearing and who are now “appearing” from our prisons – may face a camera without the need to be transported. We have done very well at instituting these changes, and those responsible for implementing them, at such short notice, are to be commended.

What is deeply troubling, though, is that the novel coronavirus pandemic is now being used as an excuse to abandon trial by jury. The attorney general, speaking at the Assize church service to mark the beginning of Michaelmas term of the St James Circuit Court recently, made it clear that the move to take away our right to trial by jury preceded the pandemic. This confession confirmed that which I have always suspected. The attack on trial by our peers is a lingering wish of so many, particularly lawyers whose legal career started at the Office of the Director of Public Prosecutions. For some reason they inherently dislike trial by jury.

Hospitals have had to retrofit their spaces, adding more ventilators and air filters to their arsenal to keep us alive during the pandemic. Many government offices have implemented inconvenient, but commendable, innovations in delivery of services to the public. As I said, we have had many hearings where there is no physical contact in the delivery of justice. Why is abolition, rather than innovation, in retaining jury trial our first option?

We have already reduced the number of jurors who deliberate on cases from 12 to seven. I see no great difficulty in making the necessary physical adjustment to our courtrooms to maintain social distancing between the seven members of the jury. We already have pre-COVID provisions for witnesses to participate by video link, with no risk of viral transmission. But, there being no will to retain the jury system, there is consequently no desire to employ the necessary innovations to make it work.

I won't hold my breath waiting for a resumption of trial by jury when the pandemic is over, should the abolitionist get their way. It was always their wish to remove it permanently from our justice system.

In her 2016/2017 contribution to the sectoral debate, the Attorney General Marlene Malahoo Forte said, “We are also thinking of abolishing jury trials for non-capital murder and go 'judge alone' ”. Please note that 99 per cent of murder trials are non-capital trials. In 2016, the talk of abolishing the jury system was being canvassed against the background of stemming the high crime rate. Soon after, the states of emergency were rolled out as another restriction to our liberty promising that it would fix our high crime rate. Today, COVID-19 is the new scapegoat, which presents a new opportunity to remove our fundamental right to trial of serious offences by judge and jury.

I invite the Jamaican Bar Association and the Advocates Association to make the necessary recommendations to retrofit our courtrooms, or have the jury sit virtually, with the appropriate checks and balances, in an effort to retain our time-honoured use of the collective wisdom of the jury.

Bert Samuels is an attorney-at-law. Send comments to the Jamaica Observer or bert.samuels@gmail.com.


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