Editorial | Bench trials get better looking

There was another round of handwringing last week over the shortage of jurors to hear cases, which Paula Llewellyn, the director of public prosecutions (DPP), said was the worse the problem has been in a decade. One of her main solutions is to increase the daily stipend for jury duty from the J$2,000, that has been for seven years.

Ms Llewellyn is, of course, right that this is an old problem, except that it stretches back substantially more than a decade. Which is what makes last week’s laments over the crisis, and the smidgen of proposals for fixes by various persons, so annoyingly irritating.

Ms Llewellyn will no doubt convince the justice minister, Delroy Chuck, to top up the token payments. That will, however, achieve little. The complaints will die down, the courts will muddle on, and many cases will traverse to another term.

The jury crisis demands far more than periodic whimpering from prosecutors, spasmodic harrumphs from the bench, and mostly resignation from defence attorneys. It is past time for a formal, robust stakeholders’ review of Jamaica’s trial process, including how jury pools are selected, and whether the quality of justice will be affected or impaired if trials by juries were abandoned.

People are selected for jury duty from among the nearly two million people on the voters’ register and perhaps nearly as many people registered to conduct tax-related business with the government. The total of those numbers, however, have to be adjusted for overlaps.

JURY DUTY

That notwithstanding, there is a vast number of Jamaicans who can be called for jury duty. However, in the 2022 Michaelmas term of the Supreme Court, administrators reported that they dispatched 4,500 summonses to prospective jurors, of which only 127, or 2.8 per cent, attended court. At last week’s opening of the court’s Hilary term, Ms Llewellyn said that in some parishes as few as 10 jurors turned up.

It is too early, maybe, to have completed a full analysis of the Supreme Court’s current term. But with respect to the Michaelmas session, there was no follow-up public statement on whether all of the summonses were in fact delivered, how they were accounted for, and if – and how many – prospective jurors sought, and were granted, waivers. Nor was there an indication that the no-shows were called before the court to explain their actions, which, in the absence of good cause, is a criminal offence.

Put another way, while this newspaper agrees with Justice Leighton Pusey’s call for state action that recognises the importance of jury duty and to encourage citizens to serve, the court, too, must exercise its inherent powers to ensure respect for the law and the proper functioning of the judicial process.

The need to rebuild civic pride, which has so exercised DPP Llewellyn, is not a short-term project. In the meantime, the maintenance of an ordered liberal democratic society needs a justice system that works and insists on respect.

At the same time, though, the raw numbers on the voters’ and taxpayers’ registers, as this newspaper previously pointed out, significantly overstate the numbers of people available for jury duty. The Jury Act provides for sweeping exemptions, including almost all civil servants; ministers of religion who do not hold other jobs; nurses and midwives; practising medical doctors; veterinarians; dentists; teachers, including most of those in the tertiary system; students, including those who attend universities and colleges; as well as ship captains; marine pilots and lighthouse attendants.

REVIEW AND OVERHAUL

This list, which is not exhaustive, is absurd. It is urgently in need of review and overhaul.

At the same time, while The Gleaner maintains its support for the principle of jury trial, and embraces the value of an individual in a democracy being adjudicated upon by a jury of his peers after deliberating on evidence heard in open court, we remain open to be persuaded to other options.

For we concede that though, on the face of it, the jury system represents the finest ideals of democracy, it is seriously stressed in Jamaica, which weakens its capacity to deliver justice within a reasonable time. This is an injustice to people who are accused of crimes, and victims thereof.

It may yet be possible to fix the system. In the meantime, the expanded use of alternative arrangements should be considered, in particular bench trials, or trials by judges only.

The chief justice, Bryan Sykes, is a strong proponent of this system, often making the point that there is no constitutional right to trial by jury, and that accused persons face no adverse impact from bench trials. Rather, they are more likely to be acquitted when judges alone sift and consider the evidence.

In the face of continued opposition by defence attorneys to making bench trials the default, we repeat our old suggestion that, as part of the stakeholders review on the trial arrangements, that advocates commission an independent quantitative and qualitative analysis of the two systems and how to make them coexist efficiently.

It is in everybody’s interest that there be timely justice.