The Colonial spectacle
WE MUST rid ourselves of the Privy Council because its retention is an unacceptable expression of our independence and sovereignty. By the same token, we must rid ourselves of the UK Monarchy and embrace Republicanism because the retention of the UK Monarchy is an unacceptable expression of our independence and sovereignty. The extant Constitutional Commission must treat these two matters as inseparable so that separation from the monarchy does not precede separation from the monarch’s Court.
The decision of the Privy Council in the Vybz Kartel case is one that could readily have been made by the Caribbean Court of Justice, and in fact, as was recently revealed by P. J. Patterson, K. C. and Hugh Small, K. C. a very relevant decision had already been made by the Jamaican Court of Appeal in a case brought by Michael Manley in 1983 against the Gleaner Company (the 1983 case).
Having dismissed the foreman of the jury for apparent bias, the presiding judge decided to continue the case with the remaining jurors. That decision was appealed. The Court of Appeal held that the entire jury was to be discharged and a new trial take place.
Thus, irony of ironies, there was already in Jamaican law an influential decision on which counsel for the accused could have relied to seek to persuade the trial judge and the Jamaican Court of Appeal to dismiss the jury as a whole. This shows how silly is the position taken by those who argue that Jamaicans need to go to the Privy Council to obtain justice.
In the twists and turns of the Vybz Kartel trial and appeals, please spare a thought for the trial judge. Justice Lennox Campbell’s well-known and much-admired legal skills were honed in the Office of the Director of Public Prosecutions, the Resident Magistrate’s Court, and the Attorney General’s Department. Neither counsel for the DPP nor counsel for the accused brought this case to the attention of Justice Campbell as they were required to do as officers of the court. Obviously, counsel for the accused was not aware of this case. I understand that the case was not reported in the Carilaw database. Had he been informed of this decision of the Court of Appeal, Justice Campbell would more than likely have discharged the jury in its entirety and a new trial would have followed.
NOT UNANIMOUS
An interesting feature of the decision of the 1983 case was that it was not unanimous. What are we to make of the position of the dissenting judge? Are we to conclude that he was stupid and of weak intellect? Of course not. In his opinion of more than 60 pages, Justice White examined all the arguments advanced by the appellants and decided that on the basis of the evidence, he could not conclude that the “impartiality of the remaining six jurors would have been eroded ipso facto by the likelihood of bias of the foreman of the jury… “. I have some sympathy for Justice White’s opinion, particularly because in order to disqualify a juror, it must be established, not that there was a possibility of bias, but rather, a “real likelihood of bias [that is] based on the reasonable apprehension of a reasonable man fully apprised of the facts” per Justice Rowe in the 1983 case, citing the 2nd Edition of De Smith’s, Judicial Review of Administrative Action, p.245. This test was not satisfied in the 1983 case.
One recalls the famous dissenting opinions of Lord Denning, some of which influenced the development of English law and one of which actually became law. The position of the dissenting Judge is an illustration of the nature of law. In most cases there is an area in which, on the basis of the facts and the law, a judge has a margin of appreciation.
In my view, neither the decision of the Privy Council in the Vybz Kartel appeal nor that of the Jamaican Court of Appeal in 1983 authorises the proposition that whenever a juror is found to be tainted, the entire jury must always be discharged and a new trial take place. The decision whether to take the alternative position of discharging only the tainted juror and continuing the trial with the remaining jurors is one that must depend on the facts of each case.
The Vybz Kartel trial and appeals present a point of inflection in the discussion of the problems relating to the centuries-old jury system in Jamaica. In that trial, there were three jury incidents. There is a well-known reluctance on the part of Jamaicans to serve in a jury. One of the problems affecting the jury system is the paltry sum of money paid to jurors. The minister of justice has indicated that this problem will be addressed.
SERIOUS CONSIDERATION
Nonetheless, the problems relating to the jury system in Jamaica run deep and warrant very serious consideration. The chief justice has called for the replacement of jury trials with trials by a judge without a jury. Statistics show that at the Gun Court, where there are trials by a judge without a jury, an accused is as likely to be acquitted as in trials by a judge with a jury.
I was a judge for 15 years at the International Criminal Tribunal for Yugoslavia, the first war crimes tribunal to be established after the Nuremberg Tribunal. Trials were conducted by a bench of three judges without a jury. Coming from a common-law jurisdiction, I had to adapt very quickly to this new system. I have nothing but praise for its efficiency. If we are to retain the jury system, there is much to be done to ensure its viability, efficacy, and integrity.
We certainly should enact legislation providing that in the event that the jury is discharged in its entirety, the trial can continue with the judge. But this measure does not resolve the fundamental and systemic problems in the jury system. We cannot remain smugly confident about the virtues of jury trials. In that regard, I welcome the decision of the minister of justice to bring to Parliament the question of the replacement of trials by a judge and a jury with trials by judges without a jury.
But Mr Editor, allow me to tell you what for me was the worst feature of the proceedings before the Privy Council. No doubt you will be surprised to learn that it was not a matter relating to substantive law. I cringed with utter embarrassment at the sight of English lawyers arguing what was in effect the entirety of the cases for the appellants and the DPP. Mr Isat Buchanan, a Jamaican, had 15 minutes to make his presentation. Given that the English counsel for the appellants spoke for some three hours, does this not smack of tokenism?
There is a long history of Jamaican lawyers, both for the Government and in private practice, presenting arguments to the Privy Council in appeals from the Jamaican Court of Appeal. From as long ago as 1951, Norman Manley successfully argued for the Vicks Chemical Company in a trademark case at the Privy Council. After independence, this practice continued. James Sewell Kerr, director of public prosecutions, frequently appeared before the Privy Council, eg, in the case of Leary Walker v R, one of the last cases I prosecuted before leaving the DPP’s Office in 1971. The presentational impact of English lawyers arguing an appeal from Jamaica, and doing so with prominent Jamaican lawyers present in the courtroom, is absolutely shocking. The impression given was that Jamaican lawyers were not competent to argue the legal points that arose in the appeal.
Our independence and sovereignty cry out for our own advocates to appear before our Caribbean Court of Justice in appeals from Jamaica.