Editorial | Reviewing jury trials

It is not clear how Delroy Chuck, the justice minister, defines haste and/or urgency.

But, in this newspaper’s view, four years is a long time within which to address serious policy questions – which is how long since Chief Justice Byran Sykes first publicly called for the abandonment of jury trials and their replacement with trials by judges only. So, that is how long that Mr Chuck has had, or should have been aware of, this matter on a live policy issue.

Further, almost a year has passed since Mr Chuck promised to take the issue to Cabinet for approval to take the matter to a joint select committee of Parliament for review, which would include inviting submissions from stakeholders.

At this point, therefore, given any semblance of efficiency in the functioning of government, Minister Chuck could complain of being pushed to undue haste to get the matter done, notwithstanding his statement last November that these issues cannot be rushed.

Two recent developments have served to refocus attention on the jury trials and why Jamaica needs to address the issue with seriousness and as a matter of currency.

One is the declared support for the retention of jury trials by the recently returned director of public prosecutions (DPP), Paula Llewellyn, who is back in the job after the resolution of the constitutional question of whether she had aged out of the job.

The other is the evidence from recent Supreme Court sessions of the continuing difficulty in empanelling juries, and the complicated and insufficient analysis by one of Ms Llewellyn’s deputies, Claudette Thompson, of why and what can be done about potential jurors who opt out of the system, claiming to be afraid.

NO CONSTITUTIONAL RIGHT

First, though, as we have noted previously, while trial by jury is a long-standing element of the common-law system, there is no constitutional right in Jamaica to this process, which has been upheld by various rulings for over 50 years. What Jamaica’s constitution guarantees is “a fair hearing within reasonable time by an independent and impartial court”.

With respect to indictable offences, the Jury Act stipulates trial by jury for treason and for cases of murder for which a death sentence is applicable. For other matters, jury trials are the presumed default, but defence and prosecution can agree to forego juries and opt for bench trials.

It has been obvious in Jamaica for decades that the jury system is badly broken. Not only do large swathes, including almost all public sector employees and teachers, but few of those who are eligible ignore, or circumvent, the summonses, which Chief Justice Sykes has lamented.

Sometimes, summonses are not delivered, as happened during the Michaelmas term of the St James Circuit Court, when 300 prepared for the session were not, to the chagrin of Justice Bertram Morrison, delivered by the police.

But there are also instances, in Jamaica’s high-crime environment with over 1,000 murders annually and a homicide rate of over 50 per 100,000, of people shying away from jury duty for fear of reprisals.

The absence of jurors and other system problems in the justice system contribute to the slow resolution of Supreme Court cases and the pace at which its backlog is cleared. It is partially against this backdrop that Chief Justice Sykes has campaigned for trials by judges only, as happened with Gun Court cases.

“It seems to me the time has come now to do away with jury trial because, the truth is, there is nothing to suggest that jury trial is inherently a better quality of justice than a bench trial,” said Justice Sykes in 2022, having previously floated the issue during the COVID-19 pandemic, when the court system came to a crawl. “There is no evidence to suggest that.”

NOT IN FAVOUR

DPP Llewellyn, however, is not in favour of this move, primarily because she believes that “there are some streetwise nuances that come out in the evidence that, really, it’s only jurors would understand, and you would find that some judges are tempted to become too legalistic in looking at the evidence”.

She added: “You may not believe the police officer, but we believe the eyewitness, the judge being very legalistic and cerebral will more tend to say, ‘well it covers everything, I don’t believe anything.’ That is my experience ... .”

Ms Thompson, on the other hand, appears to give short shrift to people who say they are fearful of serving as jurors.

She told this newspaper: “There is legislation that addresses fear. If there is a basis for fear, there are things we can do. We have not sat on our hands and said, ‘Boy, people are afraid, let’s leave it at that.’ We have had amendments to the Evidence Act that treat with fear when you can ground it, but I think it has become easy, perhaps sexy, to say, ‘I am afraid.’”

The situation, we believe, is far more nuanced and complex than Ms Thompson posits. Indeed, the situation in its entirety demands serious attention, for no one can deny that the jury system is badly broken and barely limping along.

Mr Chuck must, therefore, urgently launch the promised parliamentary review. The Court Administration Division can help this process by providing the data and associated analysis of the impact of the weaknesses in the jury system on the efficiency of the courts, and of the ratio of guilty and acquittal verdicts on bench trials versus those with juries.