Two former chief justices, Michael de la Bastide and Satnarine Sharma, have come out in support of the abolition of jury trials as suggested by Chief Justice Ivor Archie at the opening of the 2013-2014 law term last Monday.
In his address Archie advocated the abolition of jury trials for all criminal offences as opposed to just for serious crimes, and further opined that jury trials were too expensive and inefficient. He said the removal of jury trials would improve the criminal justice system.
De la Bastide, told the Sunday Express last week: “I think the CJ made a very strong case and the points he advanced have a lot of merit.”
Sharma pointed out: “I see nothing objectionable with the suggestion.”
But even as the issue has found favour in some quarters, there are others, like criminal attorney Daniel Khan who has already adopted the position that should trial by jury be abolished, he will withdraw from all cases at the High Court in protest.
Khan, in an interview with Sunday Express, said he represents 35 accused in the High Court—25, of whom are murder accused.
“I will withdraw from all matters in protest and deliberately try and frustrate the system,” Khan said.
Khan said the jury trial was T&T’s landmark against arbitrary executive power “and the proposed bill seeks to threaten this”.
But he added that such moves must be resisted “as it saps and undermines this sacred right by introducing new and arbitrary methods of trial”.
“Jury trials are considered to be part and parcel of a democratic society and the act seeks to curtail the people’s participation in the administration of the criminal justice system,” Khan said.
Admitting there was no expressed constitutional right of an accused to have a trial by jury, Khan said it could be argued that as a matter of settled practice such a right “exists by virtue of the constitutional right to due process”.
Citing the example of police misconduct, Khan said judges may not know the reality of police brutality and police conspiracies which are issues that often arise in many criminal cases.
“The common man is more aware of these occurrences and better equipped to resolve issues involving the creditability of police officers,” he said.
“I am of the opinion that the individual biases of a particular juror are dismissed by their collective deliberation in the jury room,” he added.
What legal minds say
Former chief justice Michael de la Bastide
In a brief telephone interview with the Sunday Express, de la Bastide said he supported the abolition of jury trials as outlined by the current Chief Justice.
“I think the CJ made a very strong case and the points he advanced have a lot of merit,” he said.
Saying he was of the view that people had a sentimental attachment to the jury system, the former CJ said several countries in the world had bypassed the jury system.
Stating that expenses, delay and even the possibility of intimidation were significant disadvantages to the judicial system, de la Bastide said: “I think the main concern about abolishing juries should be for the protection of judges in terms of providing them with adequate security”.
Told there could be the perception that a judge might become corrupt, the former judge said:
“I do not accept for a moment the society is so corrupt we cannot find suitable persons to entrust with the decision in criminal and civil cases. I don’t think there is any evidence to support that judges will give a corrupt decision.”
Former chief justice Satnarine Sharma
“I see nothing objectionable with the suggestion,” Sharma said last week.
Adding that a judge alone should not be presiding, Sharma said an expert in the field of the case being tried should also be present.
“Whether it’s a ballistic or forensic expert, someone in that field should also be present,” he said.
Of concern to Sharma though, was if the declaration to abolish jurors will be illegal, adding if this was the case, then the Constitution needed to be amended.
Former attorney general Ramesh Lawrence
He believes the right to jury trial “is an important right which over the centuries has been recognised to give to individuals the right to have their peers determine whether they are guilty or not of criminal offence or not”.
Maharaj said if taken away, it will be important for all stakeholders to have a say and be consulted on the new policy.
Maharaj said studies should also be conducted to determine if judges were able to dispose of matters on an expedited basis as opposed to jurors.
Saying that some judges took a long time to give decisions in civil matters, Maharaj wondered whether the abolition would now mean that the system would become more clogged with criminal matters.
“It needs serious consideration and the government must embark on a national consultancy and if necessary a referendum,” he said.
Criminal attorney Osbourne Charles SC
Greater management is needed, says Charles
A criminal attorney for the past 37 years, Charles said no jury trials needed to be “better thought out and getting rid of jury trials is not one of the options”.
“If one looks at the reasoning, at times you find difficulty in understanding that getting rid of jury trials will speed up the judicial process…speeding up the judicial process requires just greater management and anyone who has experience around the courts would understand how and why and how people are frustrated in the courts in getting their matters heard,” he said.
Chairman of the Law Reform Commission Samraj Harripaul, SC
Harripaul said the suggestion of trials without juries was engaging the attention of his Commission and is “something which needs some serious thinking”.
Harripaul said past precedence has shown that accused individuals have a sense “of security with our peers judging us”.
He said complex cases such as having 12 accused was challenging and as such jury trials would not be ideal.
The chairman said society was evolving and one needed to take into consideration that the average man on the street was hesitant to engage in jury duty. Noting there were countries which had already adopted the judge being the lone party presiding, Harripaul said the Commission’s next step will be to meet with the Attorney General and the changes “will go sooner than we think”.