In early June last year I wrote an article entitled ‘Abolish Jury Trials.’ I argued then, and repeat those arguments now, that jury trials ought to be abolished because convictions are now rarely obtained from juries even in the most glaring cases. The Attorney General and several criminal lawyers disagreed with my suggestion and views.
I believe that on the scale of things, trial by jury is not an issue of paramount concern to most people. But crime is escalating and juries have continued to free the most violent criminals in the face of compelling evidence. I have not kept any figures and no statistics are published but I would not be surprised if less than five persons have been convicted in the last twenty trials. And it is not all because of faulty police investigations or incompetent prosecution.
On September 16, 2013, one of the Caribbean’s leading jurists, Chief Justice Ivor Archie of Trinidad and Tobago, delivered the opening address of the 2013/2014 Law Term. In his wide ranging speech on issues relating to the judiciary in Trinidad and Tobago, in the presence of the President, the Prime Minister, the President of the Caribbean Court of Justice, Sir Denis Byron and other distinguished guests, he reviewed the system of jury trials. He said that the issue arose because, inter alia, there was concern that the quality of justice received was questionable.
The Chief Justice pointed out that there is no constitutional right in Trinidad and Tobago to trial by jury, which also applies in Guyana. However, the argument in support of jury trials is that ‘juries are more in touch with life on the ground and that somehow translates into a truer verdict.’ He argued that this is far less significant where the issue is, as is now frequently the case, the determination of the legal issue of guilt or innocence based on an assessment of weight and reliability of complex evidence for which juries are not trained.
Another compelling argument advanced by Chief Justice Archie is that due to the secrecy of the deliberations of juries, the determination of guilt or innocence is neither transparent nor accountable. He suggests that this violates the fundamental principles of transparency and accountability in the dispensation of justice. He noted that a Magistrate or Judge has to give reasons for decisions while juries do not.
While the Chief Justice advanced arguments in favour of abolition of jury trials, he did not actually call for it. But he said that ‘we need to bite the bullet’ and urged that a decision ought to be made on whether to continue trial by jury. In my article I made the arguments below.
Trial by jury which existed in various forms since Greek times and was officially protected by the Magna Carta in 1215, is considered in some jurisdictions, particularly common law jurisdictions like ours, to provide the ultimate safeguard against authoritarianism and the abuse of state power. However, some common law jurisdictions such as India, Pakistan, Singapore and others have abolished trial by jury. In the case of India it was because of the divided nature of the society which resulted in jury decisions being made on the basis of prejudicial factors instead of the facts of the case. In the case of Singapore it was as a result of the view that jury decisions on the basis of the prejudices of jurors was not a good basis for judging facts of a case.
In many developed countries which have developed fair judicial systems, such as Germany and Italy, decisions in criminal trials are made by tribunals consisting of a few judges and some citizens sitting together and making decisions on the guilt or innocence of the accused and passing sentence.
Even though in many countries trial by jury has been abolished or does not exist, there is some form of layperson input in determining guilt or innocence of accused persons because the decision making panels comprise a number of such laypersons. This being so there is no inherent advantage of jury trial over panel trial or vice versa and there has been no fundamental complaint of the quality of justice dispensed in countries without jury trials.
In recent years the rate of conviction in jury trials in Guyana has declined considerably even taking into account investigatory deficiencies and prosecutorial lapses. Also, many convictions are overturned on appeal because of inadequate summing up by judges to juries. At the end of every criminal case tried in the High Court the Judge is required to assess the evidence and instruct the jury on the law. The number of appeals which have been upheld for this reason is extremely high.
For these reasons there should no longer be any delay in consideration of the proposition that jury trials should be abolished with such safeguards as are necessary to protect the rights of accused persons and prevent state interference but at the same time to reduce the possibility of guilty offenders escaping justice because of flaws and deficiencies in our system of justice.