Justice system still in the dark ages

Howard Hamilton, Guest Columnist

I share the concern of columnist Orville Taylor, in his piece in your Sunday edition of January 12, on the jury system, but am reluctant to go as far as classifying it as a "waste of time".

It may appear to be a waste of time because of the way it has been allowed to self-destruct, but if all were to be known of the Dark Ages, from which we have emerged, in our effort to devise a system of trial, one would recognise that we have come a long way.

Regretfully, it has not been allowed to keep abreast of the rapidly changing world, and until the day comes when guilt or innocence can be determined by a computer, it is, and will, remain the best method of determining innocence or guilt of serious criminal offences.

I can recall in the colonial days of the early 1960s, certain parishes (Hanover and Trelawny, to name two) where the circuit courts would open and close within the hour, and why? Because there were no cases to be tried. Today, this term, there are 559 scheduled to be tried in the Home Circuit Court (of which 313 are for murder; 69, rape; and 62, grievous woundings - totalling 444, and every other parish has had similar explosions. If only an economy could mushroom like that, Jamaica would be sitting pretty.

The root cause of this implosion is that insufficient attention has been paid to our court systems and for too long, and so we have been overtaken by the rapid growth of crime worldwide.

If one were to identify the flaws in the system, they are to be found in (a) the remuneration paid to jurors, which, even with the latest increases in the stipend, is still wholly discouraging; and (b) the retention in the Jury Act of the provision that no public servant "holding appointments and receiving salaries in the public service of Jamaica" are able to serve as jurors, thereby depriving the justice system of a cadre of some of the most educated percentage of potential jurors.

This provision should be lifted and be replaced by 'self-employed persons', whose income may be more directly affected, if required to engage in unduly long trials.

Lay jurors, once correctly and properly directed on the law by the learned trial judge, bring a combination of common sense as well as Jamaican home-grown experiences, and distaste of 'advantage-taking' to the application of the law, which single judges must be forgiven, if they have become bludgeoned by the depth and excesses of inhumanity of man to his fellowman, that he/she is exposed to day after day.

A lay juror who spends a session of a few weeks in judgement of his countryman is not as vulnerable, and at the end of the session can leave court feeling civic pride.

Make sacrifices

The stagnant state of the justice system ought not to be laid at the doorstep of any one limb of the justice system. All areas have to make sacrifices. We should have begun increasing our courtrooms and judges (Supreme and RM courts islandwide) 25 years ago.

We are in the electronic age, we have to get with it. The sight of a judge taking notes in longhand must be a thing of the past. A closer working relationship between the Prosecution and the Bar has to be reached as to the admissibility of evidence.

The Bar has a vital role to play also. The prosecution must be bold and offer no evidence, where the facts provided do not merit prosecution; and the defence must advise and encourage a guilty plea when in the client's best interests.

The first step is for all players to recognise that a serious problem exists and all parties involved have to give up something or we are all going to suffer.

The minister of justice is on the right track but can't do it alone.

Howard Hamilton, QC, is a former public defender. Email feedback to columns@gleanerjm.com.