CJ: Jury-less trials alone cannot clear backlog

The in­tro­duc­tion of ju­ry-less tri­als will not, on its own, make a dent on chron­ic back­logs with­in the crim­i­nal jus­tice sys­tem.

This was the con­sen­sus reached by sev­er­al le­gal and ju­di­cial lu­mi­nar­ies fol­low­ing a pan­el dis­cus­sion on the is­sue host­ed by the Ju­di­cia­ry’s Ju­di­cial Ed­u­ca­tion In­sti­tute of T&T at the Hall of Jus­tice in Port-of-Spain, on Tues­day.

Chief Jus­tice Ivor Archie, a long-time pro­po­nent of the ini­tia­tive, was the first to ad­mit that it could not be ex­pect­ed to make an im­me­di­ate tan­gi­ble im­pact on back­logged cas­es.

“The in­tro­duc­tion of tri­al by judge alone is not in­tend­ed by any means nor do we pre­tend that it is a cure. It is with­in a range of tools avail­able,” Archie said, as he not­ed that ur­gent and in­no­v­a­tive ac­tion was need­ed as there are over 700 peo­ple spend­ing be­tween five and 10 years on re­mand await­ing tri­al for cap­i­tal of­fences.

He claimed that much of the pub­lic furore of the ini­tia­tive was based on mis­con­cep­tions of the Mis­cel­la­neous Pro­vi­sions (Tri­al by Judge Alone) Act, which was passed by Par­lia­ment in 2017 but is yet to be pro­claimed.

Archie was care­ful to note that the leg­is­la­tion gives the op­tion to an ac­cused per­son, who re­ceives le­gal ad­vice, to chose a ju­ry-less tri­al. The ac­cused per­son al­so has the pow­er to re­verse their de­ci­sion with­in a rea­son­able time be­fore the tri­al is set to be­gin.

Archie sug­gest­ed that the sys­tem was more trans­par­ent as judges would be re­quired to give writ­ten de­ci­sions in cas­es un­like in tra­di­tion­al tri­als where ju­ries sim­ply de­cide guilt and in­no­cence.

“We sim­ply just don’t know what hap­pens in the ju­ry room,” he said, as he not­ed at ap­prox­i­mate­ly 90 per cent of crim­i­nal cas­es were cur­rent­ly done by mag­is­trates based on sim­i­lar elec­tions by ac­cused peo­ple.

Archie’s warn­ing on the un­re­al­is­tic im­pact of the leg­is­la­tion was sup­port­ed by Di­rec­tor of Pub­lic Pros­e­cu­tion (DPP) Roger Gas­pard, SC, who sug­gest­ed that oth­er im­prove­ments are more ur­gent­ly need­ed.

“All I am say­ing is, per­haps be­fore we fo­cus all or too much of our en­er­gies on the whole no­tion of the abo­li­tion of tri­al by ju­ries, there are many bug­bears which im­pact the crim­i­nal jus­tice sys­tem as we know it,” Gas­pard said.

He sug­gest­ed that bet­ter case man­age­ment, in­creased re­liance on sci­en­tif­ic ev­i­dence such as DNA, wit­ness pro­tec­tion and mea­sures to al­low wit­ness­es to tes­ti­fy anony­mous­ly should be con­sid­ered first.

“Some­times the short­age of re­sources can prove to be so crit­i­cal that it may prove to be very dif­fi­cult to get a move on. If you have 700-odd mur­der cas­es pend­ing, re­sources are an im­por­tant is­sue,” he said.

While Gas­pard said that he and his of­fice sup­port­ed the leg­is­la­tion, in prin­ci­ple, he said that he felt that ju­ry tri­als are an im­por­tant facet of democ­ra­cy.

“The ju­ry sys­tem rep­re­sents an av­enue and pos­si­bil­i­ty of the com­mon man on the bus, in the Croisse or in San Fer­nan­do to con­tribute to the ju­di­cial sys­tem. So when the com­mon man is lim­ing on the block he would not tell you about a sto­ry that in­volves we and them but rather a sto­ry that in­volves us,” Gas­pard said.

Not sur­pris­ing­ly, crim­i­nal de­fence at­tor­neys were op­posed to the move.

While most sea­soned at­tor­neys were not present for the event, their views were ex­pressed through Law As­so­ci­a­tion Pres­i­dent Dou­glas Mendes, SC, who sat on the pan­el.

Al­though he ad­mit­ted that he was per­son­al­ly in sup­port, Mendes claimed that those mem­bers who he spoke to had claimed that ju­ry tri­als were fair­er and gave their clients the best prospect of suc­cess at tri­al.

He said that they were main­ly will­ing to con­sid­er ju­ry-less tri­als in com­plex fraud and sex­u­al of­fences cas­es where “the ju­ry may be sym­pa­thet­ic to the vic­tim and not their client.”

As part of the event, re­tired North­ern Irish Judge Sir An­tho­ny Hart and Cay­man Is­land Judge Mar­lene Carter spoke about the use of the tri­als in their ju­ris­dic­tions.

Hart ad­mit­ted that they were in­tro­duced in the 1970s to deal with ter­ror­ist cas­es and since then have been used in con­junc­tion with tra­di­tion­al tri­als.

Hart claimed that he was im­pressed by the leg­is­la­tion as it pro­vid­ed for the ac­cused per­son and not the DPP’s of­fice to elect for such a tri­al.

As he at­tempt­ed to il­lus­trate the fair­ness of such tri­als, he point­ed to sta­tis­tics from his coun­try which re­vealed that a rea­son­able amount of peo­ple re­ceive ac­quit­tals from judges.

Carter said that this coun­try’s leg­is­la­tion was sim­i­lar to her ju­ris­dic­tion as ac­cused peo­ple are al­lowed to elect for ju­ry-less tri­als.

She said that de­spite con­cerns raised over the un­will­ing­ness of ac­cused peo­ple to ex­er­cise the op­tion, 30 to 35 per cent of cas­es in her coun­try were done with­out ju­ries.

Carter said she was im­pressed with lo­cal leg­is­la­tion as it pro­vid­ed safe­guards in which judges are giv­en a 14-day time lim­it for pro­vid­ing their de­ci­sions and rea­sons.

Reporter: Derek Achong

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