Easy fixes for jury system

THIS NEWSPAPER maintains its support for the increased use of bench trials, especially in circumstances such as that which prevailed at the height of the COVID-19 pandemic that made the empanelling of juries impractical. Indeed, we have always agreed with Chief Justice Bryan Sykes that in Jamaica, there is no inherent right for a trial by jury, as was long ago established in the Trevor Stone and Eric Darien cases.

Nonetheless, we remain unconvinced by the calls for a wholesale ban on juries in criminal matters, whose latest proponent is Tom Tavares-Finson, a member of the defence Bar, who also has the elevated status as president of Jamaica’s Senate. Our concern with Mr Tavares-Finson’s suggestions is that it is reflective of what too often passes as problem-solving in Jamaica. Which is not about making viable processes work, but abandoning them and proceeding to something different, with the hope that the new thing will work.

Mr Tavares-Finson was animated to his position by the latest iteration of an old problem: too few jurors turned up for court. As was reported by this newspaper on Sunday, in preparation for the current Michaelmas session of the Supreme Court, 4,500 summonses were dispatched to prospective jurors. Only 127, less than three per cent, attended.

BAD FOR JUSTICE

That is bad for justice. Insufficient jurors lead to delays in cases, which adds to the backlog in the courts, as well as accused persons – unless they opt for trial by a judge alone, which is rare – to be denied their constitutional right to fair trials within a reasonable time. Victims of crime, too, suffer. Delays negate their right to justice and to closure.

In this regard, having cases heard only by judges is, on the face of it, an enticing idea. It would be efficient. And Mr Tavares-Finson is right: bench trials have been the norm in some criminal matters for nearly a half a century, since the introduction of the Gun Court in 1974. Indeed, Justice Sykes has in the past quoted data showing that there is no greater rate of conviction in cases when judges sit alone than when they are assisted by juries. The reverse, he argued, is true.

Defence lawyers are apparently not convinced by the chief justice’s argument and his supporting figures. We previously suggested that advocates commission their own quantitative and qualitative analysis of the matter, which might be supported by law faculties at The University of the West Indies and University of Technology, as well as the Norman Manley Law School.

The constitutional and practical operational issues apart, there is a deeper philosophical hurdle to be scaled to embrace the abolition of jury trials lock, stock, and barrel. There is the old principle that is part of the traditional liberal democracy, about the accused persons being tried before juries of their peers. This is a worthy proposition, but an improbable undertaking when jurors are no-shows. Those advocating a total abandonment of jury trials, however, have offered little by way of persuasive arguments or empirical data to show that there is no fix to the problems confronting the jury system.

SHORTAGE NOT AN ISSUE

The list of potential jurors is extracted from the island’s voters’ register of over 1.9 million, so the shortage of people should not be an issue. Further, if people are summoned to do jury duty and they do not turn up, they can be fined, and possibly charged with contempt of court, if they insist, without compelling and legally sound reasons, on not being empanelled. There is, however, no data, at least none that this newspaper is aware of, of absent jurors being brought before the court explaining their absences, or having been fined for their truancy. Neither is it clear how many of the summonses generated from the electoral register are actually delivered to the people for whom they are intended.

Further, it boggles the mind that civil servants, or “officers holding appointments and receiving salaries in the public service of Jamaica’’, in the language of the schedule to the Jury Act, are exempt from jury duty. So, too, are medical doctors; dentists; veterinarians; nurses; midwives; ministers of religion; schoolteachers; university lecturers; tertiary students; aircraft mechanics and flight controllers; ships’ captains; wharfingers; lighthouse keepers; inspectors of the poor; city engineers; superintendents of works and roads; the chairmen and deputy chairmen or municipal authorities; and members of parliament, among others.

It is almost easier to note who is not exempt than to publish the categories of exempt people. Notably, the exempt categories are likely to be among the country’s best educated people, who might add value to deliberations in jury rooms. A better way, we believe, would be for individuals who want to be exempt, no matter their professional backgrounds, to make their case to a judge inside the courtroom. The law, and law-enforcement agencies, should reach those who play hooky with the system.

That, however, demands effort. It is hard work. So, when we fail to enforce laws, we abandon them and introduce new ones – and hope for the best. Welcome to problem-solving Jamaican style.

This newspaper believes that with the appropriate mechanisms in place to prevent abuses on one side or the other, bench and jury trials can operate efficiently in Jamaica. If there is the will.