WITH Jamaica’s Jury Act again slated for revision, legal minds are opining that a highlight by the Privy Council in its ruling in the Vybz Kartel case Thursday morning is a signpost to local legislators.

In quashing the murder convictions of Adidja “Vybz Kartel” Palmer and his co-accused Shawn “Shawn Storm” Campbell, Kahira Jones, and Andre St John for the 2011 murder of Clive “Lizard” Williams and placing the question of a retrial back in the lap of Jamaica’s Appeal Court, the British law lords pointed out that judges, under the United Kingdom Jury Act, can dismiss a corrupted jury and try a case alone.

The issue of whether Supreme Court Judge Justice Lennox Campbell,
who had tried the four men, should have dismissed the jury upon learning that one juror had been tainted, was one of three points the Privy Council had been asked to rule on and has been seen as main reason the convictions were found to be unstable.

The law lords, in their ruling, said the decision by the original trial judge to continue the murder trial after the attempted bribe of the jury had been brought to his attention “gave rise to a miscarriage of justice”.

Law Lord Lloyd-Jones, in delivering the ruling, said the board was of the view that the tainted juror should not have been kept on the jury.

“There was a need to isolate the other members of the jury from the source of contamination. In the board’s view, allowing Juror X to continue to serve on the jury is fatal to the safety of the convictions which followed. This was an infringement of the defendants’ fundamental right to a fair hearing by an independent and impartial court in accordance with Section 16 of Chapter III of the Jamaican Constitution,” he stated.

Commenting further on the issue, Lord Lloyd-Jones said, while the board is “mindful of the very serious consequences which may flow from having to discharge a jury shortly before the end of a long and complex criminal trial, it is also very conscious of the danger of deliberate attempts to derail criminal trials, in particular in their closing stages, by engineering situations in which it becomes necessary to discharge the jury”.

“In England and Wales legislation now provides that, in certain circumstances, it is permitted to discharge a jury because of jury tampering and to continue the trial without a jury but by judge alone. However, in the absence of such a provision
— and there is no such provision in Jamaica
— there will be occasions on which, as in the present case, a court will have no alternative but to discharge a jury and end the trial in order to protect the integrity of the system of trial by jury,” he stated.

After the ruling, attorney Lloyd McFarlane, who has practised outside Jamaica, hammered home the point raised by the law lords.

“The option that now obtains in the United Kingdom, where during the trial jurors drop out to the point where it could not properly proceed as required by the Jury Act, that option that the judge could go ahead and try the matter by himself is one that I find quite acceptable, because you really don’t want to be doing a trial for several, several months and because one juror dropped out the whole thing is tainted,” McFarlane said.

“So, as an alternative, I do not have a problem with an amendment which allows for that situation to occur because it is a hard thing to spend so much time on a matter and having to do it again,” the senior jurist told the Jamaica Observer.

According to McFarlane, the balance struck by the Privy Council in its ruling is a delicate and instructive one.

“The Privy Council, in this particular case, had to rule in a manner that sets an appropriate precedent to matters coming after this in terms of how they should be dealt with. Nonetheless, the privy counsellors were sympathetic to the dilemma that Justice Campbell had been placed in, which is understandable,” he noted.

“Their ruling, in the end, was that having chosen to go ahead with the jury, although tainted by one juror, the judge did not give adequate direction as to how to approach knowing that there might be a corrupt juror there. It is a tricky matter from the judge’s point of view, because there really wasn’t a lot of precedent for him to work with, and ordinarily a judge would avoid telling a jury that one of their members had been corrupted because there was no actual finding on that by a court for him to do so,” McFarlane argued.

“So the fact that he stayed away from actually saying that and gave them the normal instructions not to be affected by anybody else other than the evidence, it looks a little harsh on the judge himself but it is really a dilemma that he was in,” he pointed out.

He, in the meantime, noted that the fact that the law lords ruled that the Appeal Court should decide on whether or not there should be a retrial is also instructive.

“It is also understandable that the Privy Council did not quash it outright but has sent it back for the Court of Appeal to make a decision as to a retrial, and the reason the Privy Council would have done that was because the irregularities they found would not have caused them to feel that it was enough to entirely quash the convictions,” McFarlane told the Observer.

“It is clear that they felt that the strength of the case was such that it should be for the Court of Appeal to make a decision as to whether there should be a retrial, and in those circumstances it is quite likely that the Court of Appeal will, in fact, order a retrial,” he said.

McFarlane was also keen to point out that the men were not entirely home free, despite the ruling.

“Their status continues. Everything goes by procedure. What happens is that with the decision of the Privy Council, the Court of Appeal will now schedule the matter for a hearing to make that determination as to whether or not there should be retrial. The Court of Appeal would hear arguments based on the actual decisions issued by the Privy Council. At that point, when the Court of Appeal hears those arguments, if it orders a retrial then the lawyers for the convicted persons can, in light of the new developments, ask for bail, pending the new trial. And even if the Court of Appeal does not grant them bail at that time, when the matter comes up for retrial in the Supreme Court the lawyers for the convicted persons will have the right to ask for bail,” he explained.

“Normally it would be said the convictions are quashed and the charges are dismissed, that is not the case here; the charges are not dismissed, the persons are not free. If the Court of Appeal says there should be a retrial and it goes to the Supreme Court, depending on what is happening, the availability of witnesses, et cetera, applications can be made for dismissal in the normal course as you would in a normal trial. At the same time, too, the DPP’s (Director of Public Prosecutions) office would have to reassess its case, what it has, what it doesn’t have, and whether a retrial having been ordered it will still proceed depending on whether the witnesses are available. If not, the DPP’s office might move to enter a n
olle prosequi or to just offer no evidence,” he stated.

In the meantime, attorney Alexander Shaw told the Observer, “I am in agreement with the crux of their judgment inviting us to consider having a judge alone continue a trial without a jury [in the instance where there is juror misconduct]”.

According to Shaw, rather than throwing jury trials out altogether, as has been suggested by head of the judiciary, Chief Justice Bryan Sykes, legislators should look to amending the legislation along these lines.

Earlier this month, Justice Minister Delroy Chuck indicated that he would be establishing a joint select committee of Parliament to look at the Jury Act “to see how we can widen it, and probably to assess the chief justice’s position that you should have bench trials”.

On Thursday, Shaw said that “arising from this case it’s important for us to go back to the drawing board and consider how we can advance or develop our criminal justice system to ensure that we do not repeat the mistakes. It certainly highlights one of the imperfections of trial by jury, but I think what they have done is proper.

“They have found that there was some miscarriage of justice, but then they don’t want to deal with the tough question of whether a retrial is necessary or whether the men ought to be acquitted, but I gather, though, based on some of the comments that they have made, they believe that the Court of Appeal is best suited to make certain decisions,” the attorney said.

The law lords had said that, while it was correct for the judge to discharge the juror who had cited “personal difficulties”, he should have done more to investigate what had occurred with the tainted juror and the others “to establish as best he could how wide the contamination had spread and over what period”.

“If, as the forewoman claimed, Juror X had attempted to bribe all 11 other members of the jury, this must have begun prior to the discharge of Juror 11 on 6 February 2014. It follows that the attempts to bribe jurors had been going on for well over a month before they were drawn to the judge’s attention on the last day of the summing up,” the law lords pointed out.

“The judge was placed in an unenviable position. This had come to light only on the 64th and final day of a long and complex trial. He had already lost one juror. He could not discharge Juror X and continue with 10 jurors because section 31 of the Jury Act provided that a murder trial could not proceed with fewer than 11 jurors. He had either to continue with those 11 jurors or to discharge the jury. He decided to continue with the 11 jurors and to give them a further direction as to their function in the trial,” the Privy Council pointed out.

Said the law lords, “while the board has considerable sympathy with the judge’s dilemma, it considers that the course followed by the judge was a material irregularity in the course of the trial giving rise to a miscarriage of justice within section 14(1) of the Judicature (Appellate Jurisdiction) Act”.

Palmer and his co-accused were accused of killing Williams on August 16, 2011 after he failed to return two unlicensed firearms which Palmer had allegedly given him for safe keeping. Williams has not been seen since and his body has never been found.

Eight weeks into the trial one of the original 12 jurors had been discharged due to “a personal difficulty” leaving 11 jurors on the case. On the final day of the judge’s summation on March 13, 2014 he was notified 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 the Crown and the defence, the judge ruled that the trial should proceed. The jury later that day, by a majority of 10 to 1, convicted the men.