Friday, February 23, 2018

Trial without jury

 If we are serious about the upgrade of the criminal justice system and we intend to deliver swift justice without compromise of due process and the rules of natural justice, then we must have meaningful discussion based on actual studies about the retention of trial by jury.

The effect of s5 (2) (f) (ii) of the Constitution is to ensure that a person charged with a criminal offence has a right “to a fair and public hearing by an independent and impartial tribunal”.

This provision does not translate to an accused person having a right to a trial by jury so that any debate on the retention or abolition of jury trials must speak to the issue of what would be just and fair in a society that has changed radically since jury trials first began.   

Far too often when the issue of the abolition of jury trials arises, there is an emotional outburst in favour of its retention with advocates suggesting that the removal of juries from the criminal process will be a fatal blow to justice.

I respectfully beg to disagree.

The overriding principle in any matter before a court is that the case must be dealt with justly and so the issue becomes one involving the fairness of jury trials to all parties who come to the courts for justice. 

Having held several positions in the criminal justice system including State Counsel in the Office of the Director of Public Prosecutions (DPP), I have witnessed first-hand the trend in criminal trials becoming lengthier and  the issues to be determined, more complex.

At the end of a trial, there is no procedure to determine whether the jury properly grasped the areas of law as explained by the judge or if the principles of law were properly applied by the jurors to the facts in the case.

It would be wrong in my view to simply dismiss these concerns with the statement that the verdict of a jury is final and all matters leading to its decision irrelevant.

The tremendous expense involved in facilitating such trials is unavoidable and if the result of “true justice’’ was a guarantee, then the large sums of money would be deemed as well spent. This unfortunately is not the case.

Another matter that has to be addressed is whether trial by jury assures that there is no undermining of the criminal justice process, either deliberately or inadvertently, by persons who are appointed to be triers of fact.

The age-old principle that the fate of an accused person should be determined by a panel of his peers, who would be familiar with societal realities, cannot in itself, be used to justify the retention of juries in criminal trials.

Managing juries, especially during lengthy trials is no easy task and although the constant reminder is given to jurors to adhere to their oaths and not to allow extraneous matter that does not form part of the evidence given in the court to influence their verdict, this instruction is proving extremely difficult to enforce.

In the United Kingdom, criminal trials can be conducted without juries where there is a real and present danger of jury tampering and despite reasonable steps being taken, there is a substantial likelihood of tampering, so that it is in the interest of justice for the trial to take place without a jury.

However, this provision for trials without juries does not address the matter of social media. There are challenges faced in controlling jurors who cannot help but satisfy their burning curiosities to know more about the accused and even the barristers who appear in their trials.

The easy access to the Internet, facilitates background checks of any party to the proceedings, including the judge, and there have been instances, such as AG v Fraill (2011) EWCA Crim 1570 in which a juror was sentenced to eight months in jail for exchanging Facebook messages with the accused.

In other instances jurors conducted research on witnesses and shared the information with members of the panel in order to assess the credibility of those witnesses based on their backgrounds.

And just to drive home the point about social media and its effect on court proceedings, there have been  reports in which defence counsel read Facebook  messages to “get to know jurors better’’ so that they could appeal to their inner senses when making addresses before them.

In a changing world in which technology is advancing at rates comparative to the speed of light, the criminal justice system must keep abreast if it is to be efficient, effective and most importantly, fair.

In that regard, there must be consideration given to abolishing trials by jury.

Perhaps the real question is whether the abolition should be complete or partial.

I am in favour of the complete removal of jury trials.

We need to leap in faith for a system that cries out for justice.