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Bench vs jury trials

...and the wait for justice

Kadiesh Fletcher

Thursday, June 17, 2021

The public discourse on the utility of bench trials against jury trials has arisen again in the public domain. The Court Administration Division would like to add its voice, and hopefully clarity, on some of the issues being raised.

Currently, the Gun Court Act, the Law Reform (Fraudulent Transactions) (Special Provisions) Act 2013 and the Criminal Justice (Suppression of Criminal Organization) (Amendment) Act 2014 prescribe that offences thereunder are heard in court by a judge alone. The Criminal Justice (Administration) Act, as amended by the Jury (Amendment) Act 2015, section 11A (1) prescribes, in cases that can be tried by a jury, that the prosecution and defence must agree in writing for the offence to be tried by a judge alone.

The push for greater use of bench trials was first made in the face of the pandemic and the inability of the courtrooms across the island to adequately accommodate same, having taken into account physical distancing and the health of court users. The argument is again being proffered because, in some jurisdictions, there is a direct correlation between an efficient court and greater use of bench trials.

Singapore, one of the most well-respected jurisdictions in the world, having almost the same number of matters as Jamaica, abolished jury trials in 1969. In Trinidad and Tobago bench trials were introduced in 2019 and have been hailed for accelerating the pace at which trials move through the High Courts.

In the High Court Division of the Gun Court, based at the Home Circuit Court, for example, matters are disposed of at a faster rate than in other courts in which jurors are utilised. The Gun Court is almost backlog-free as it is currently hearing matters from 2020 and 2021. The Data from the Courts Statistics Unit show that in 2017 there was a conviction rate of 39 per cent for bench trials in the Rural Circuit Courts and Gun Court; 38 per cent in 2018; and 37 per cent in 2019. While for jury trials the data show a conviction rate of 48 per cent in 2017; 45 per cent in 2018; and 47 per cent in 2019. (The data sets controls for case type and, therefore, to some degree case complexity, and is normalised over the time series.) This question arising as to whether the often-heard suggestion that judges are biased in favour of the prosecution is borne out by the evidence. There is no evidence that there has been a sharp or inexplicable rise in the rate of convictions in bench trials.

It is important to note that all criminal trials in the parish courts are bench trials, and it is in these courts that the greatest stride towards backlog reduction have been made.

It must also be noted that the defence retains the right to an appeal to challenge the decision of the lower court in the event the defendant believes that the trial judge erred on points of law or fact or both.

Members of the Bar have long decried that trial dates are being set too far into the future and that the pace of justice in Jamaica is slow. The judiciary maintains that the use of bench trials can play a significant role in having more efficient courts and reducing wait times.

At present, the Circuit Courts are underutilised because many defendants have opted for jury trials; thereby contributing to the backlog and further delay. The defendants and witnesses will have to wait for justice. Trial dates have been and are available in the event individuals choose to have bench trials. However, if a jury trial is preferred, dates for those matters are in 2024 or beyond, because of the inventory of those matters before the courts.

Kadiesh Fletcher is acting director of client services, communications and information at Court Administration Division, a division of the Supreme Court.