Trial by jury is a right, not a privilege
THE EDITOR, MADAM:
T‘Justice must not only be done, it must manifestly and undoubtedly seen to be done.’
HE COVID-19 pandemic has impacted trial by jury all around the world, as the wheels of justice turn even slower due to this infectious and insidious disease. The importance of trial by a ‘jury of one’s peers’, however, cannot be overstated, as it is one of the cornerstones of fairness in any criminal justice system.
The importance of a verdict from ordinary citizens is underscored by Article 39 of the Magna Carta (1215), which states “No freeman shall be taken or imprisoned except by lawful
judgment of his peers…” No doubt, jury trials protect individual rights and imbue ordinary citizens with the ,participation in justice. The ultimate gatekeeper of the conscience of the law is the people, who according to their perceptions of right and wrong, exercise good, moral fortitude.
It was noted in the High Court of Australia in Brown v The Queen that jury trials are “the chief guardian of liberty under the law and the community’s guarantee of sound administration of criminal justice. The verdict is the jury’s alone, never the judge’s.”
The Jamaican Constitution provides that our citizens are guaranteed a fair hearing within a reasonable time by an independent and impartial court or authority established by law. Interestingly, the Constitution does not expressly speak to citizens having a right to a trial by jury. It is inconceivable that our legislators would not have intended that trials by jury should not be of right, as for nearly 300 years the Supreme Court of Jamaica had not presided over a criminal trial without the assistance of a jury. It is one of the hallmark of a “fair hearing by an independent and impartial court”, as outlined in our Constitution.
WAIVER OF RIGHT
More recently, in Alqudsi v The
Queen, the High Court of Australia considered the history of the right of trial by jury and the place of judge alone. The history, as set out in the decision of that case, reflects that trial by jury is a right, and trial by judge alone must be understood as a waiver of that right, which can only be done by the accused.
COVID-19 has inevitably caused jury trials to be suspended due to the risk of potential jurors being carriers of the virus or getting infected themselves. I do not believe however, that we have exhausted all possible means to resume trials by jury during the pandemic and beyond. With these unprecedented times, we are faced with a new normal having to embrace virtual meetings, videoconferences, tele-medicine and distance education. We must learn to adapt to this new normal in the face of this pandemic. We cannot be too quick to resort to bench trials rather than a trial by jury. In the spirit of finding solutions, consider the following: 1) That the largest courtrooms
be reserved for jury trials. 2) Jurors can also be seated in a manner that offers adequate social distancing, and Plexiglass may be placed in-between potential jurors, which will provide added protection. 3) Personnel should be tasked with sanitising surfaces of the courtroom and handsanitising stations placed at convenient locations within the courtroom.
4) Continued mask wearing should also be encouraged, and only persons with a particular interest in the trial should be allowed into the courtroom.
5) Place potential jurors in a separate courtroom to watch criminal proceedings by video link.
We cannot trample upon the confidence of the people, who already have little faith in Jamaica’s justice system, by abandoning such a fundamental concept of having a trial by jury. As it is oft said, “Justice must not only be done, it must manifestly and undoubtedly seen to be done.” The wisdom and power in the voice of the populace should always prevail over a single judge. While the wheels of justice may turn slowly, at least the citizens of Jamaica will be confident that it turns with the helping hands of their peers.