Trial by jury for very serious offences is a feature of life in the democratic world. It has very deep roots in Commonwealth Caribbean societies, and though not entrenched in the Jamaican Constitution (unlike the Commonwealth of The Bahamas and Bermuda), it has survived constitutional challenges here in Jamaica.
Indeed, the centrality to the jury system to the administration of justice is captured by the decision in the case Re: Eric Darien, a juror ( 22 WIR 323). Darien was summoned for jury service and requested an exemption from the Circuit Court judge on the ground that his conscience did not allow him to judge anyone. His request was denied and he sought a declaration that his freedom of conscience would be abridged by jury service. Chief Justice Kenneth Smith held that, whilst his freedom of conscience may have been compromised, jury service was nonetheless “reasonably required in the interest of public order” and “for the purpose of protecting the rights and freedom of others” and therefore overrides his individual right of conscience.
The weight and thrust of this authority fixes trial by jury as a safeguard for the protection of the rights of people charged with serious offences and its role in the maintenance of good public order.
When viewed through these prisms, the recent call by Chief Justice Bryan Sykes for the abolition of jury service warrants and demands scrutiny. I will succinctly, and hopefully correctly, set out the chief justice's critique of, and his rationale for, abolition of jury trials.
In June 2021 the chief justice posited that trials should be conducted by “trained persons” as opposed to jurors who can only “read and write” and who, instead of taking notes, only “sit and listen”. This, to my mind, centres the chief justice's complaint on the intellectual quality of those serving as jurors.
In early January 2022 the chief justice reiterated his call for abolition of jury trials, and on this occasion he proffered two additional grounds for his view. Firstly, “that there is nothing to suggest that jury trial is inherently a better quality of justice”, and secondly, that it would be “too costly to retain jury trials in the context of a pandemic”. I will briefly treat with each.
As regards the June 2021 complaint of the lack of intellectual quality of jurors, it is sufficient to indicate that the Jury Act does not restrict the cranial compact of jurors to those who can “only read and write”. The restrictions in the main are on age, literacy, sound mind, not having a prison record, and not being a bankrupt. Every lettered and learned Jamaican, excepting lawyers and doctors, for obvious reasons, are therefore eligible for jury service. It is my view that instead of aiding his call for abolition, the unfortunate and uncomplimentary reference to jurors is akin to an own goal. Clearly, if the complement of those summoned are able “only to read and write”, the indictment lies with the State apparatuses responsible for the provisional and final settlement of the jury list, to include law enforcement and legal affairs personnel.
Instead of mooting for abolition, Chief Justice Sykes would, I think, be better served by asking why otherwise lettered and qualified Jamaicans are not being summoned for jury service. More importantly, why is the State refusing or failing to enforce the provisions of the Jury Act for the trial of serious cases to secure and protect “the interest of public order” as per Eric Darien? And why is the blame for the system's failings being shunted at ordinary folks who patriotically answer the call to jury service? Why are trial jurors not given writing paper and pen to take notes like judges and prosecutors?
I think that, in regards to the complaint of quality jurors, the chief justice has misdirected his ire. There are more than ample measures available and unused that can be utilised to harvest jurors suitable to participate in the trial of any case, however complex.
The January 2022 complaint dealing with “better quality justice” is best examined by posing the question in the following manner: Is there any evidence that suggests that bench trials inherently ensures better quality justice than jury trials? The question I submit must be asked this way because the chief justice's proposal is for the abolition of the latter in favour of the former.
In attempting to make answer, the unchallenged evidence of the director of the court administration division (CAD) that jury trials return more convictions than their bench-alone counterparts is a useful starting point. Standing uncontroverted as it is, the onus now falls on the learned chief justice to reasonably satisfy his collective audience that, in the main, jury verdicts are so marred or tainted, so skewed or unreasonable that they bring into question the utility or reliability of jury trials. This, to my mind, was not attempted or done, and that failure detracts from the soundness or merit of the complaint against the jury system and the call for its abolition.
The concerns of the costs associated with jury trials in the pandemic era can be similarly dealt with by posing the following questions: How much is too much to ensure justice is done? How much “cost” is too much to ensure good public order whilst protecting the rights and freedom of all Jamaicans? The answers, like wind, tugs at our faces sufficiently to dispose of the complaint.
However, there is unease, not so much about the words lipped, but the perch from which they were uttered. For, the appropriation and disbursement of money to provide suitable conditions for jury service is not within the remit or competence of the chief justice. Assuming he was advised by that other place that it was “too costly” to provide conducive conditions, to include courtrooms, for jury trials, I would have expected his rejection of such advice rather than its endorsement and repetition. For, sadly, endorsement is the planting of the seed of the tree that makes the altar on which public order and democratic rights and freedom are sacrificed. In tandem with the State's recent acquisition of the right to appeal bench trials decisions of not guilty, unease could soon give way to dread.
Be that as it may, it is incontestable that the operation of the jury system is in urgent need of overhaul. Presently, only the poor; unemployed; and small, self-employed business owners are summoned for service. The rich, business elite, civil servants, and a host of professionals are not. Those called to serve are not reimbursed travelling expenses or provided a stipend to cover even a bottle of drinking water.
Additionally, the administrative and infrastructural maladies plaguing the administration of justice is font for much greater culpability for delays and underperformance in the court system. The constipated backlog in the Circuit Courts, for instance, is not the fault of jurors, as much as they are not the fault of trial judges.
Perhaps it is not too much to ask the learned Chief Justice Sykes to shine a light on his thoughts on the matter, both past and present. Perhaps then, he would see the jarring conflict between the role of jurors envisioned in his January 2020 court road map, Benchmarking the Future: Courting Success, and his present posturing.
Delford G Morgan is an ttorney-at-law. Send comments to the Jamaica Observer or email@example.com