FRANK Phipps, an eminent defence attorney, recalls that when the Jamaican constitution came into being in 1962 trial by jury was automatic for offences where the punishment exceeded 12 months in jail.

But 40 years on, Phipps, and other legal luminaries, point to a trend where judges, and not juries, increasingly try criminal cases in the Jamaican courts.

“There has been a gradual movement towards exclusion of the jury by using magistrates to try important and substantial cases,” says Ian Ramsay, a highly respected criminal lawyer.

Adds Phipps: “Today, a Resident Magistrate may impose five years for certain drug offences and a High Court judge may impose life imprisonment in the Gun Court for some firearm offences.”

Trial by a jury, or panel of ‘one’s peers’, has been a bedrock principle of the English-based system of criminal justice for centuries. The thinking is that a group of persons, with broadly similar socio-cultural perspectives of an accused person, is better able to decide on the facts of a case than someone who is only trained in the law.

Dr Lloyd Barnett, a well-known Jamaican constitutional lawyer, agrees with this doctrine.

“The combined intelligence of the members of the jury and their experience in the daily life of the community make them better equipped than judges to carry out the function of judges of fact,” he says.

So fundamental is this idea considered in some jurisdictions that they have entrenched the pre-eminence of jury trial in their criminal justice system in their constitutions.

The Canadian Charter of Rights and Freedoms, for example, prescribes trial by jury “where the maximum punishment for the offence is imprisonment for five years or a more severe punishment”.

The constitution of the United States provides that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crimes shall have been committed.”

Under the Australian constitution, too, an accused person who has been indicted (or formally charged through a legal process) of any offence against the law is required to be tried by a jury in the state where the offence was committed.

The Australians are also contemplating reforming their constitution to make jury trial mandatory for cases attracting capital punishment, corporal punishment or imprisonment for two years.

In Jamaica, jury trial is not entrenched in the constitution, which, proponents say, allows for the encroachment of trial by judges on which members of the island’s Bar have commented.

Indeed, the matter of trial by jury was one of the issues considered by the constitutional commission which sat during the early 1990s. The commission did not go as far as trial-by-jury advocates had hope. It proposed that every person charged with a criminal offence shall have the minimum right to trial by jury “when charged on information or indictment in a superior court”.

Which is, in fact, the practice.

Circuit courts, which sit at different locations in the island, conduct trial by jury for criminal offences such as manslaughter, rape, carnal abuse, incest and arson. Of course, a jury is used in the Coroner’s Court in determining criminal culpability in murder cases.

But according to Ingrid Pusey, legal officer at Jamaica’s justice ministry, the scope for jury trial here is wider than people might imagine. Civil proceedings in the Supreme Court can also be tried by jury, but this is based on the discretion of the judge.

In addition, a Supreme Court judge can order jury trial where a civil case involves “an allegation of fraud against the applicant or that the matter involves issues of slander, libel, false imprisonment, malicious prosecution or seduction”, Pusey notes.

Resident Magistrates, too, have similar discretion, in trying civil cases. It is not one, though, that is often used.

But in both Magistrate and Supreme courts, jury trial is prohibited if the judge assesses that the trial will require “any scientific or local investigation or a prolonged examination of documents or accounts, which cannot be conveniently made with a jury”.

But members of the Jamaican Bar are not pleased about the exceptions to this principle. They point especially to the lack of jury trials in firearm and related offences by a Supreme Court Judge under the Gun Court Act. They also note the power of a Resident Magistrate to try serious drug offences and to impose sentences up to five years’ imprisonment.

The parliamentary committee that, until late last year, had been reviewing proposals to introduce a charter of rights in the Jamaican constitution faced the dilemma of how to entrench trial by jury, as recommended by the constitutional commission, and still allow for the instances cited, where judges alone determine the case.

The committee, chaired by Attorney-General A J Nicholson, mulled over whether such trials should be retained as an exception to a right to jury trial for a limited time, after which the matter would be revisited.

In the end, though, they shied away from any form of constitutional entrenchment.

The legislators feared that making jury trial a constitutional right could limit the flexibility of political administrations to introduce measures to effectively combat crime. They, ironically, pointed to the case of the Gun Court Act that was introduced during the 1970s in response to an upsurge in gun crimes.

“…Despite the hallowed place which trial by jury occupies in the judicial system… once that guarantee is given,” the parliamentarians argued in their report tabled last December, “(There is no) flexibility regarding the mode of trial in relation to the matters falling within the scope of the constitutional guarantee.”

This would be so, they said, “regardless of any developments in the Jamaican society even… where those developments profoundly affect national security issues”.

According to the group, this flexibility took particular significance in light of global concerns about terrorism and cited the United Kingdom, “cradle of our common law rights”, as a jurisdiction which now mandated trial by judge alone for certain cases that were significant to national security.

For these reasons, the parliamentary committee did not recommend the inclusion of jury trial among the proposed charter of new rights to Jamaican citizens. Instead, they referred the matter to the full legislature for its resolution.

Unlike the committee of legislators, several members of the Jamaican Bar argue that making trial by jury a constitutional right affirms that citizens have a role in promoting law, order and justice.

Ramsay insists that the people’s input by way of the jury is “essential for justice”.

“There can be no better way to enforce the sentiment of the society about crime at any given time,” adds Phipps.

Barnett argues that entrenching jury trial “involves civil society in the responsibilities of the administration of justice”.

“Legislation has been eroding the principle of trial by jury by constantly extending the jurisdiction of the Resident Magistrate’s Court at the expense of the Circuit Courts,” he complains.

Frank Phipps, meanwhile, recalls challenging a sentence of two years imposed by a Resident Magistrate as unconstitutional because this was not permissible before 1962. For, before independence such a sentence could only be imposed after a jury trial in the High Court.

Says Phipps: “I was met by the question in the Court of Appeal: What provision in the constitution gives the right to trial by jury?.”