Prominent defence attorney Peter Champagnie says pressure should be put on legislators to change the law requiring the prosecution’s consent in matters in which an accused opts to be tried by a judge alone, instead of by a judge and jury.

Under the Criminal Justice (Administration) Act, which was amended by the Jury (Amendment) Act in 2015, the prosecution and the defence must agree, in writing, for an offence to be tried by a judge only.

Champagnie, in a paper presented at a seminar hosted by the General Legal Council and the Independent Jamaican Council for Human Rights last week Thursday in recognition of International Human Rights Day, said Jamaica was alone in its class in this requirement.

“In our jurisdiction, when I compare it with other jurisdictions — New Zealand, Trinidad, the Cayman Islands, Belize, and other jurisdictions — we were the only ones which require the consent of the Crown to go by way of a bench trial.

“I am not in favour of it, and it points to the fact that there needs to be more activism in terms of our various associations, to pressure and to lobby to ensure that this aspect of it is amended and it is redacted in terms of a new look in terms of the legislation,” Champagnie stated.

He added: “I do not see the necessity or the import at all for the Crown to have a say in that regard, as to what mode the accused who is in peril, for him to elect for you to have an input, for you to say, ‘No, it should not be a bench trial…’ I believe what should obtain is we should have the enjoyment of both, and that the election of the ultimate method should be exclusively a matter for the accused and defence counsel.”

Champagnie’s advocacy comes even in the wake of the controversy stirred by Chief Justice Bryan Sykes, who in June, speaking against the background of the COVID-19 restrictions at the nation’s courts, where jury trials remain suspended indefinitely as juror boxes do not allow for physical distancing, urged defence attorneys to make greater use of bench trials, which is a trial by a judge alone, as opposed to a trial by jury.

But even though this option is allowed by law for most cases, a number of defence attorneys have balked at that suggestion.

Speaking last week Thursday, Champagnie said he was of the opinion that the pandemic has changed the legal landscape forever, making it so that that option will be even more of a fixture on a return to “normalcy”.

“I do not think life will ever be how it was before, in terms of the administration of the criminal justice system, because I think the pandemic has certainly expedited those who were originally in favour and pushing in terms of bench trials,” he said, noting further that most of the shift towards bench trials took place from 2010 onward.

In the meantime, the attorney, while pointing out that “any argument for taking away a person’s right to a jury trial should not be entertained, [as] a world without jury trials would be inconceivable”, noted that judge-alone trials have had positive impact in countries such as Trinidad.

“There appears to be a global trend towards the formalisation of bench trials relating to the administration of the criminal justice system,” he said, referencing other jurisdictions such as New Zealand, Cayman and Belize, who have gone this route.

However, he said “there is no denying the fact that there remains still a strong resistance to this kind of trial”.

According to Champagnie, “the preference for jury trials may be due to the typical career path through which individuals become judges, [as] in the vast majority of cases it is prosecutors who transcend to become judges”, giving rise to the perception “that there will always be a prosecutorial bias and consequently, in instances where such judges sit alone without a jury, an adverse jury is likely to be the case in respect of an accused”.

He, however, pointed out that while in Jamaica’s jurisdiction at the Parish Court, Supreme Court and the Court of Appeal levels, the judges all have, in the majority of cases, a history in terms of careers in prosecution, “this, however, has not translated into any bias in favour of the Crown”.

“As one example, the trial of serious offences in the Gun Court suggests that the level of acquittal is far greater than the rate of convictions in which judges preside without a jury. Within this context, the question of judges being biased in favour of the prosecution is, to my mind… the empirical data simply does not support this,” he stated.

The chief justice, speaking further on those perceptions in October, said the actual data disputes these arguments.

“What the data is telling us is that in the circuit courts and the gun courts, when they have bench trials, the conviction rate is 37 per cent, in the jury trials it is 46 per cent. It really begs the question judges are as biased as persons are suggesting,” he stated.

“For us, the issue is not whether the judge came from a prosecutorial background or some other background,” Justice Sykes said, noting that, “when you look at the cases coming from the Court of Appeal you will observe that in all of this debate, no data has indicated successful appeals on the basis that the judge is biased in favour of the prosecution”.

Responding to queries from the Observer on the point raised by Champagnie in respect of the Crown’s consent in relation to bench trials, Director of Public Prosecutions (DPP) Paula Llewellyn said, “In light of the fact that we do not have the right of appeal, unlike the other jurisdictions referred to, it really would be unfair for the prosecution to be deprived of the opportunity in terms of making an informed consent in relation to whether a matter should be tried by the jury or judge alone. Perhaps one can understand why my learned friend would hasten to embrace that scenario, because it is now a matter of record that judges sitting alone tend to acquit more than jurors in certain cases.

“The prosecution, or certainly the Office of the DPP, always has to have at the forefront of making an informed judgement in respect of prosecutions, a variety of factors, and once we clear the hurdle of the ingredients of the offence being present, we always have to adhere to the public interest in terms of whether to go forward with a prosecution or to decline to prosecute,” the DPP pointed out.

“As far as I am concerned, in a scenario where, unlike all the jurisdictions that were spoken of, where we have no right of appeal, it would be unwise for us to consent to a situation where we would be depriving ourselves of being equal partners in the decision-making process, and it would lead to an unbalanced situation because the pendulum of justice must swing in both directions, not only for the accused but also for the victims of crime and the relatives of the victims; it cannot be that justice is only seen as the prerogative of the accused,” she stated further.

Lewellyn and at least two of her predecessors have made that appeal to Parliament in times past, to no avail.

She said if lawmakers were to acquiesce to the suggestion made by Champagnie, it would “further cause an imbalance in the administration of justice where these matters are concerned”.

“That is an unbalanced situation and that is unfair, and I would use this opportunity again to ask the authorities to bring the administration of justice where the right of appeal for the prosecution is concerned into the 21st century like so many other jurisdictions in the Caribbean and elsewhere.

“Those countries alluded to have in all likelihood, the right of appeal for the prosecution. They have already evolved to the realisation that there should be equality as it relates to how the administration of justice treats with the prosecution, in terms of the victims of crime vis-à-vis how the accused have been treated, and I say this, notwithstanding that it is the prosecution’s duty to prove the case against the accused, but where these jurisdictions have evolved to is a realisation that you have to have some balance,” the DPP noted.

She, meanwhile, made it clear that the prosecution had no fight with trials conducted by a judge alone, but noted that there were circumstances in which a jury trial was more apt.

“In the majority of cases we would agree that the matter can be dealt with by judge alone, perhaps in the majority of cases, but there are cases where the circumstances are of such that the entire case rests on the credibility and reliability of witnesses, and where in the final analysis we have found that it meets the public interest to have the final arbiter of what is the truth and what are the facts of the case in terms of what is proved by a jury of his peers,” she stated.

Parliament has in recent times passed of a number of legislation dealing with serious crimes that do not facilitate trials by jury, among them the 2014 Criminal Justice (Suppression of Criminal Organisations) Act, commonly called the anti-gang legislation, as well as the Law Reform Special Provisions Fraudulent Transactions Act and the Trafficking in Persons Prevention Suppression and Punishment Act.

The Observer, in its own analysis, found that there is provision in law for the prosecution in New Zealand, Trinidad, the Cayman Islands, and Belize to appeal the decision of trial judges in particular circumstances.