In defence of trial by jury

ISRAEL KHAN, SC

I would prefer to burn my robe than to practise in a juryless system.” – Pamela Elder, SC, then president of the Criminal Bar Association, 2017.

No tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen…trial by Jury ensured that Englishmen got the sort of justice they liked and not the sort of justice that the government or the lawyers or anybody of experts thought was good for them…the pool experience of ordinary people, their common sense and native intelligence is the best instrument for arriving at a just verdict. – Lord Devlin

TRIAL by jury for the people of TT means more than a mere institution of justice, in that it facilitates and promotes the opportunity for the ordinary God-fearing citizens of good character to participate in the administration of the criminal justice system in the delivery of justice in this multiracial country.

Indeed, the jury as an institution is the corner stone of the criminal justice system in Trinbago and thus under the doctrine of Separation of Powers it is indispensible to our participatory democracy because it embraces, promotes and supports the concept of “Government of the people, by the people for the people.”

It should be noted and emphasised that in a criminal trial at the assizes, the accused is usually tried by judge and jury.”

And such a trial is conducted by not only a competent and experienced judge in the criminal division of our Supreme Courts but equally by a competent and experienced prosecutor (from the Director of Public Prosecutions department) and competent and experienced attorney from the private bar who specialises in criminal law.

And now a similar attorney from the Public Defenders Department.

The trial judge is the independent referee between the prosecutor and defence attorney who are the combatants in the criminal arena during a trial. Both the prosecutor and defence attorney (who are officers of the court) are “fighting” for justice for their respective client.

The prosecutor “fights” for the state and the defence attorney for the accused. Hence a fair trial demands that both the prosecution and defence’s attorney must be evenly matached in competence and experience.

In the final analysis, the jury will decide whether the accused is guilty or not guilty.

And this brings me to the vexed question of the raving debate in Trinidad and Tobago on the topic trial by jury.

Chief Justice Ivor Archie, at the ceremonial opening of the 2016 law term called for the abolition of jury trials, stating it was the cause of delays in the criminal justice system and should be replaced with judge alone trials. He said it was a systematic failure.

I remind the citizenry that one of the most famous and celebrated jurists, Lord Devlin stated some 66 years ago, that the first object of any tyrant in White Hall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of 12 of his countrymen. I call upon all the people of our country, especially the leaders of tomorrow, to be vigilant.

We must constantly remind ourselves from whence we came so we may be conscious of where we are going and be watchful and careful as to where our elitist leaders want to take us.

Trial by jury as an institution is a check on the use of the criminal trial system as a weapon in the hands of a despotic state.

Professor Antoine stated in 2016: Law and legal systems are already so alienated from the common man, and engender so much distrust in the governed and governors, that juries are powerful demonstrations of justice in progress. In our classist and elitist legal systems, it is perhaps the last bastion of grassroots democracy.

And here we must tack-back to Chief Justice Archie’s comment. He opined that jury trials were the cause for delays in the criminal justice system and went on to boldly state that the jury system was a systematic failure. There is absolutely no empirical evidence to support this assertion.

It is both the trial judge and the jury who are engaged in the trial of the accused. And the judge’s duty is to assist the jury in understanding the complex legal issues and the evidence adduced. Thus he must do the following:

(i) Use simple language in order to make it abundantly clear that all the jurors understand his legal directions.

(ii) Crystalise the facts in issue between the State and the Accused.

(iii) Remind the jurors of the salient features of the evidence for the state and the accused.

(iv) Most of all, give the jury a balanced summation, it must be fair and impartial, neither leaning heavily for the State or the Accused.

Lord Devlin made the following positive points for trial by jury and I adopt them for the people of TT.

(1) Trial by jury ensured that Englishmen get the sort of justice they liked and not the sort of justice that the government or the lawyers or anybody of experts thought was good for them.

(2) Trial by jury gives the protection against laws which the ordinary man may regard as harsh and oppressive…it is an insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just.

(3) The pool experience of ordinary people, their common sense and native intelligence is the best instrument for arriving at a just verdict.

(4) Trial by Jury serves to produce the best blend of logic and common sense in the verdict of twelve (or nine) reasonable and intelligent men.

JURY TAMPERING

The anti-jury advocates cite jury tampering (bribery) and intimidation as an additional reason and or justification for its replacement by judge alone trial.

But is it not easier to tamper and or intimidate a single judge in a trial by judge than a panel of jurors of nine or 12? And in judge alone trial, the criminal judges would falter on the issues of visual identification, consent or no consent by victims involving allegations of sexual offences, provocation, self-defence, diminished responsibility and insanity to name a few.

It is my considered opinion that it is virtually improbable to tamper successfully with all 12 jurors in a capital offence case (murder) in order to result in an acquittal or to tamper with seven out of nine jurors in non-capital matters to obtain a majority verdict of not guilty.

Jury tampering would result in a hung jury and a retrial would be ordered. The effect of such would be that these worse case scenarios would have further time (delay) and money spent in conducting a retrial. This is a small price to pay for the hallowed right of trial by jury. The issue of guilty or not guilty must not be usurped by the trial judge. Let the ordinary men and women, the salt of the earth, decide who should suffer death by hanging or long term of imprisonment by their verdicts and who should go free via acquittal by the jury.

After all is said and done about judge alone trial, trial by jury serves to produce the best blend of logic and common sense in the verdict of 12 (or nine) reasonable and ordinarily intelligent men and women from our country.