KING’S Counsel Peter Knox, the attorney appearing for the prosecution in the Privy Council appeal for popular Jamaican entertainer Vybz Kartel and his three co-convicts, on Wednesday argued in the first of two hearings that had trial judge Justice Lennox Campbell discharged the jury upon learning that one juror had been tainted, after 56 days of hearings, the jury system would have been brought into “disrepute”.

Vybz Kartel, whose given name is Adidja Palmer, and his co-convicts Shawn Campbell, Kahira Jones, and Andre St John, after a 64-day trial before Justice Campbell and a jury in the Home Circuit Court in downtown Kingston in 2014, were convicted of the 2011 murder of Clive “Lizard” Williams. According to the Crown, the appellants murdered Williams on August 16, 2011 after he failed to return two unlicensed firearms which Palmer had given him for safe keeping. Williams was not seen or heard from after that date, and his body has never been found.

During the trial, Justice Campbell was notified of an allegation that a juror had attempted to bribe others by offering $500,000 to give a not guilty verdict. After investigating the allegation and considering it with counsel for both the prosecution and the defence, the judge decided that the trial should proceed. He did not discharge the jury or the particular juror said to have offered the bribes. The judge finished his summing up at 3:42 pm on March 13, 2014. The jury returned at 5:35 pm, at which time the forewoman told the court that the jury had not reached a unanimous verdict. The judge sent the jury out again. At 6:08 pm, the jury returned and, by a majority of 10 to 1, convicted the appellants of the murder of Williams.

On Wednesday, Knox, taking the floor after attorneys for the appellants had outlined their arguments, argued in his submissions that it was established that defendants cannot derail trials just by making offers of bribes to jurors.

“It’s not open to a defendant himself or indeed a juror acting, if you would like, without instructions from the defendant but nonetheless in the defendant’s interest to derail the trial. I submit it also goes to the whole jury system and it would bring the jury system into disrepute in a case such as this,” Knox told Law Lords.

“If the position is really this, there are 10 innocent jurors who have performed their duty without any shred of bias. It would bring the system into disrepute if the verdict is nonetheless set aside because of one bad juror who was not obeying his duty. In my submission that would be a strike at the sensible man in the street,” Knox contended.

Asked by the Law Lords whether the normal recourse wasn’t for the judge to “get rid of the juror” as a “juror who refuses to obey directions has to go”, Knox said, “The jury comes in with a 10-1 verdict, the one is the rotten juror who came in with a not guilty verdict because he had been bribed, but it had no bearing on the verdict of the other jurors.”

In responding to further questions from the Law Lords as to whether the other jurors having knowledge of the attempt to bribe them resulted in a prejudicial mindset, the jurist said the trial judge had satisfied himself in ensuring that the men would have been given a fair trial.

“I submit he was entitled to come to a conclusion that the 10 jurors, with proper directions, would not take into account the fact that one of them had been offering bribes and that was obviously a matter for the trial judge himself to assess, and that’s how he assessed it. I also rely on the fact that the Court of Appeal upheld the judge’s judgment on this point, so what you would be effectively doing is saying to the local courts they were wrong to hold that there could be a fair trial notwithstanding,” Knox told the sitting.

Furthermore, he said while the concern was reasonable, “Jurors have to be trusted to act in accordance with their oath.”

“The question is whether there was a fair trial or not, and my submission is that what the judge did was to remove any risk of bias by the directions he gave and what he had been telling them before; it’s the whole thing that has to be looked at. I do submit, if one asks, in looking at everything, the verdict, the letting off of Shane Williams [one other accused], and the evidence, which was simply overwhelming, one asks: What unconscious bias being added to all the evidence that is there, what can it have done? And that is the point about the strength of the case,” Knox declared.

Furthermore, he said the fact that the jury did not convict the accused Shane Williams based on the evidence about his involvement showed that the jury was capable of making a distinction in terms of which of the defendants were culpable based on the facts of the cases against them. He was also at pains to point out that the attempted bribes came after all the evidence in the matter had been heard.

“The judge persistently gave jurors very strong warnings. Right at the beginning of the case he emphasises to the jurors that you are the judges, and you must decide in accordance with your oath. Every time he sends the jury out he reminds them, ‘Do not talk to anyone.’…[A]ll the time he is saying to the jury, ‘Take this as a very serious thing; you must not speak to anyone, you must remember your oath.’ I say this because after 56 days of hearing this, the jury would have been well aware of the seriousness of their task and that they must not talk to anyone, and they must decide in accordance with the evidence,” Knox emphasised.

Knox said Director of Public Prosecutions Paula Llewellyn, King’s Counsel, who was not the one to prosecute the case, was quite within her right when she asked to appear before the trial judge on the matter to advise the court not to enquire further into it at that level, stating that the Crown was prepared to take the risk and continue with the matter since it would be difficult to retry the case.

Attorney for Palmer, Isat Buchanan, in his submissions on Wednesday, said the verdict was not a true verdict.

“There has never been in the modern common law where a juror who we know of a fact is poisoned, is tainted, was allowed to remain on a jury to bring a verdict simply because the legislation would have prevented him from being discharged where it is clear on its face that that juror ought to have been removed to protect the fair trial right. And it is in that vein that I would say that there is no cure, no proviso, or no thought of a retrial or a second bite of the apple where the unfair trial right was breached in the manner that it did. The conviction ought to be quashed,” Buchanan said.

On Wednesday, also, the lead attorney for Palmer and his co-convicts, speaking ahead of Buchanan, emphasised that the trial judge had failed to determine “how far the poison had spread” from the briber before giving a direction to the jury. Furthermore, in arguing another ground that the judge was wrong to invite the jury to reach a verdict late in the day, given the special circumstances of the case, he said the issue was important enough to have been documented by the framers of the Jamaican Criminal Bench Book.

“It clearly recognises the potential pressures that can be put on a jury and we would submit that one of the problems, if you have a jury that already has poison within it, the problems of pressurising the jury becomes even more intense and the reason for that is that if a jury is going to potentially be influenced by unconscious bias, that risk increases if people are effectively pressurised to take a quick decision,” the attorney said.

“Unfortunately, some people tend to go to their prejudices if they are under pressure. There is clearly a recognition that sending a jury out late puts pressure on them, particularly in a situation such as Jamaica where there is no opportunity essentially for the jury to be discharged. They know they are going to be kept together, they are not going to be able to go home until they reach a verdict,” he added, pointing to the 3:00 pm benchmark mentioned in the standard.

“So in complex cases — remember this is apparently one of the longest criminal trials in Jamaican history — it may be necessary to complete the summation earlier than 3:00 pm to avoid pressure. In this case you had the added complication that when the jury was sent out they came back at 5:35 pm, were asked if they had reached a unanimous verdict, they said they hadn’t. The prosecutor then pointed out that they had not been out for two hours, which is the point at which a majority verdict can be reached. There was no direction saying you need to try and reach a unanimous verdict. That is inconsistent with another passage of the bench book,” the attorney argued.

The hearing of the appeal, which is being presided over by Privy Council Law Lords — Lord Reed, Lord Lloyd-Jones, Lord Briggs, Lord Burrows, and Lady Simler — will continue today.