Presentation by Jamaican Queen’s Counsel Peter Champagnie on the occasion of the Annual Charter Lecture hosted by The Independent Jamaican Council for Human Rights (IJCH) on Human Rights Day, 10 December 2020.
In the preparation and presentation of this paper, I am reminded of one of my first jury trials in the St. Catherine Circuit Court. The accused was charged with the offence of Motor Vehicle Manslaughter. Embedded in the allegations against him was the assertion that, at the material time he was driving under the influence of alcohol. It is said that the accused was a well-known and consistent patron to nearly all of the retail sugar distilleries within his community. In one of my interviews with the accused, having made the point that his case would ultimately be tried by a jury of his peers and therefore there was always the possibility of receiving a “not guilty’ verdict, his response to me was not encouraging. He responded by saying, “A jury of my peers? Do you know what those guys are like?” He was somewhat relieved and so was I, when I explained that his peers did not in this instance mean his companions at the various retail sugar distilleries. This anecdote, in essence brings into focus whether a jury trial is always the preferred choice for persons charged for serious offences. Indeed, whether in the first instance there is a right to such a trial.
Arguments regarding whether or not there is a right to a jury trial have recently resurfaced particularly as it relates to the impact of the Covid-19 pandemic on the administration of our criminal justice system. A few weeks after the first discovered case of Covid-19 on March 10, 2020 in Jamaica, the administration of the criminal justice system was forced to put itself in a position where all jury trials were suspended indefinitely. Against this background we were reminded that cases ordinarily determined by a jury could still proceed and be determined by way of a bench trial. Section 11A (1) of the Criminal Justice Administration Act as amended by the Jury (Amendment) Act 2015 provides that
“subject to subsection (2), as regards an offence otherwise triable by jury, where (prior to the empanelling of the jury), the Prosecution and the accused (or each accused, where more than one person is to be tried jointly for the same offence) in writing agree for the offence to be tried by the judge alone, the trial for the offence shall proceed in that manner.”
The provision above, clearly in the Jamaican jurisdiction, gives the right to an accused to elect whether his matter should be tried by a judge and jury, or judge alone. In such instances however, it clearly demonstrates that where the accused is desirous of having his matter tried by a judge alone, the consent of the prosecution is required.
It is noteworthy that this aspect of the Jamaican Legislation is unique in the sense that, a judge alone trial requires the consent of the prosecution. This does not appear to be the case in other jurisdictions. In my view, it should not be that the prosecution should have any right to determine the modality of a trial within this context by an accused. It is the accused who is at peril.
Despite the reminder of the provisions of the Criminal Justice Administration Act, in the face of the pandemic and the suspension of jury trials, there has been a great reluctance to embrace the format of judge alone trials in Jamaica. Rooted in this reluctance is the view of some that trial by jury is an inalienable right.
The proponents of the view that a trial by jury is a right, often draw on the historical origins of jury trials, and suggest that it is part of the fabric of the common law. His Lordship the Honourable Mr Justice Ira Rowe in R v Trevor Stone [1977] WIR 458 stated that
“in summary we hold that trial by jury in the Circuit Court has become, through the common law, a part of the law of Jamaica”.
That there have been in recent times the promulgation of a number of legislation dealing with serious crimes that do not facilitate methods of trials by jury, have caused those in favour of a jury trial to be even more vocal. In this regard, in the Jamaican context, reference is often made to:
- The Criminal Justice (Suppression of Criminal Organizations Act), 2014 commonly referred to as the Anti-Gang Legislation
- Law Reform (Fraudulent Transactions) (Special Provisions) Act
- Trafficking in Persons (Prevention, Suppression and Punishment) Act.
In respect of the latter legislation, the Jamaican Parliament in January of 2018 passed amendments to the Trafficking in Persons Act, to enable a judge to try trafficking offences without a jury. This legislation as well as the others cited above, carry with them heavy sanctions when convictions follow. Against this background, it is the view of some, that legislation such as these, should operate within the rubric of a jury trial and to the extent that they exist as they are; represent a clear and present danger to jury trials being on the way of becoming extinct. While Justice Rowe in Stone’s case alluded to the right to a jury trial existing at common law, he went on to say that:
“prior to the coming into force of The Constitution, all rules of the law could be changed by an ordinary Act of Parliament. Certain common law rules were specifically selected and given the special protection of entrenchment by the Constitution, trial by jury in criminal cases in the Circuit Court was not specifically treated.”
His Lordship’s dicta were affirmed by the Board of the Judicial Committee of the Privy Council. Lord Diplock, in delivering the Board’s decision stated
“in the reasons for judgement of the Court of Appeal delivered by Rowe JA (ag.) the grounds on which this submission must be rejected are set out compendiously. Their Lordships since they are in full agreement with the reasoning of the Court of Appeal, feel able to deal with the matter briefly. The entrenched constitutional right of a person charged with a criminal offence are to be found in Section 20 of the Constitution. They entitle him to be tried by an independent and impartial Court established by law…The section contains no mention of trial by jury”.
The Charter of Fundamental Right and Freedoms (Constitutional Amendment Act 2011) is consistent with the omission of any mention of the right to a jury trial. Section 16(1) of the Charter provides “whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”.
It could be argued that the decision in Stone’s case which was delivered on the 4th of March 1980 concerning the right to a jury trial, was revisited decades later again by the Board in May of 2015 in Misick & Ors v The Queen [2015] UKPC. In this case one of the points taken, was that the trial judge had directed trial by himself alone, without a jury, under the terms of the Trial Without a Jury Ordinance 2010 (“TWAJO”). It was said that in arriving at that decision, he erred in not directing himself in accordance with the criminal standard of proof. In finding as they did, that the judge was well within his right to exercise his discretion under the TWAJO without applying the criminal standard of proof, the Board gave legitimacy, where legislation existed, to have trials by judge alone. This was in the context of the Board noting at paragraph 49 that;
“in Common law countries, any suggested curtailment of trial by jury is met by the greatest caution at the level of parliamentary and public debate. Lord Delvin’s famous description of jury trials as “the lamp which shows that freedom lives” is not mere hyperbole.”
The Board went on to note at paragraph 53
“it should be emphasized that the possibility of trial by judge alone, provided for by TWAJO is an exceptional departure from the normal mode of trial for serious offences.”
It concluded that departure from a jury trial must be confined to whatever classes of case or circumstances for which the legislation provides and must be plainly justified. Also noted was that an order for judge alone trial should not be made simply because it is it more convenient, or marginally preferrable. In this regard, ironically and at the risk of being provocative, in practice, experience has shown that within the Jamaican context the determination to go by way of judge alone trial pursuant to the Criminal Justice Administration Act is readily agreed upon only in instances where the prosecution discloses beforehand that it intends to offer no further evidence against an accused person. It may be argued that this represents the clearest example of expedience over all other considerations. However in my view, in effect it does no violence to the efficient operation of the administration of justice.
Recognising this as it is, consideration as to whether there are any other virtues to a bench trial as opposed to a jury trial becomes important. Those extolling the virtues of a bench trial readily point to a number of instances where it eliminates a number of problematic situations. One obvious example of this, is the situation where there is no longer the need for Change of Venue Applications before the commencement of a trial, where there are good grounds for believing that a fair trial would not be possible due to jury tampering or bias in a particular geographical location. Section 34 of the Judicature (Supreme Court Act) in Jamaica provides that
“It shall be lawful in all cases of criminal prosecutions for a Judge of the Supreme Court, on application either on behalf of the Crown or the accused, and on good cause shown, to change the venue and remove the trial from any one Court to any other, and such last-mentioned Court shall thereupon have jurisdiction in such case.”
This provision invariably relates to issues surrounding jury tampering or prejudice either in favour of or against an accused person. Clearly with a bench trial, such a concern would not arise. Applications under Section 34, in some instances prove to be time consuming and involve in and of itself a trial within what is to ultimately be tried by a jury. Apart from being time consuming it can also be costly to an accused.
Another obvious benefit of a bench trial, is that it eliminates any fear of a ‘false start’ in respect of the commencement of a trial. That is, with a jury trial there is always the risk of there being a hung jury wherein the proceedings have to be commenced de novo. This issue arguably has plagued jury trials resulting in amendments being made to the Jamaican Jury Act where verdicts are now acceptable, in for instance, murder trials where hitherto, the verdict had to be unanimous. See Section 44 of the Jury (Amendment) Act, 2015.
Outside of the issue of a hung jury, other contributing factors also giving rise to re-trials are jury tampering and perverse verdicts. In respect of the former factor, it is to be noted that in New South Wales, legislation allows the court to order a trial by judge alone, where there is a substantial risk of jurors or witnesses of tampering in a way that cannot otherwise be avoided. See Section 132 (7) of the Criminal Procedure Act, 1986. In respect of the latter, perverse verdicts often occur in circumstances where a jury’s verdict is overturned years later. This is oftentimes after an Appellant has spent an inordinate period in custody.
Increasingly, as the method of police investigation come to rely on scientific data and applications, it is argued that the ability of a jury to fully appreciate technical evidence becomes arduous. Such a situation is exacerbated when the reception of such evidence, is of a kind, that technical data or investigative methods are governed by legislation themselves which are referred to in the process. In this regard, reference can be made to the relatively new DNA Evidence Act, 2016 in Jamaica, which among other things, determine how DNA sampling is to be treated. This apart, there also exist amendments to the Evidence Act in 2015 in Jamaica which treat with the reception of electronic information into evidence. These legislation apart, with increased usage of cell phones, criminal investigations now include the presentation of evidence in the way of cell site analysis. This is not often easily understood even by those trained in law, let alone lay persons. In essence, it is therefore argued that criminal trials are becoming increasingly complex in their nature and are therefore best suited for judge alone trials, where a tribunal is able to use its legal training to arrive at a proper assessment of the evidence.
Within this geographical region, undoubtedly one of the greatest benefits of a bench trial, is that it guards against predisposed prejudice or bias that is bound to occur within small populations, where potential jurors would have been already exposed to information pertaining to a case to be tried, or an accused. Indeed, this consideration was observed by the Board in the Misick’s case as it related to the appointment of an ad-hoc judge foreign to the territory of Turks and Caicos Islands. Lord Hughes of the Board of the Judicial Committee of the Privy Council noted that in the case for consideration
“the impending trial of prominent local politicians has generated a good deal of controversy in the Islands. Plainly, that was taken that it was sensible to appoint an ad hoc judge of considerable experience, from a larger jurisdiction from outside the Islands. The Islands have a population of approximately 34,000; of whom only about 6000 comprise the enfranchised electorate of belongers; that of Jamaica is about 2.8m. The Supreme Court of the Islands has two judges plus the Chief Justice; that of Jamaica comprises up to 40 judges and its Court of Appeal is composed of the President and six others.”
This observation by Lord Hughes may beg the question as to whether or not the recently concluded trials in Jamaica of Adidjah Palmer & Ors [2020] JMCA Crim 10 and R v. Tesha Miller, both tried by jury would have had the same fate with a bench trial, bearing in mind that both accused persons were persons of prominence and great notoriety in the island. To what extent did any bias based on a predisposed view of either accused factor in the ultimate pronouncements of guilt by the jurors in both cases? Unfortunately, one will never know as jury trials do not have a component part, where reasons are given by the tribunal of fact as to how the decision was arrived at. Quite to the contrary of course, is the situation with judge alone trials as the tribunal here is mandated to provide reasons as to his or her finding of guilt or innocence. From this comes certainty of an appreciation of the findings which, if adverse, makes the Appeal process that much clearer to manoeuvre.
Another argument that may be put forward in favour of a judge alone trial, relates to the issue of delay in the determination of a case before the court. In the jurisdiction of Trinidad and Tobago, jury trials were for decades (like in many other jurisdictions) identified as a source of delay and so, coming from certain quarters, were calls for its abolition. No doubt, as a consequence, The Miscellaneous Provisions (Trial by Judge Alone) Act, 2019 came into force on 1 February 2019 to address this. Since then there have been seven historic completed judge alone trials with others set to commence. Based on this, it has been said that accused persons, electing trial by judge alone, have caused the length of these trials to be dramatically shortened. The types of serious criminal matters being heard by judge alone range from murder, manslaughter, rape, larceny and wounding with intent. The speed at which judge alone trials have made a positive impact is perhaps best demonstrated within that jurisdiction by a case that was determined in the High Court before Justice Lisa Ramsumair-Hinds on 31 January 2020. The accused was charged with wounding with intent for an incident which had occurred 18 years ago. The accused was found not guilty within 20 minutes by the Judge determining that he acted in self-defence. Legal arguments and the issues within the case were quickly identified and settled without the attendant complex exercise of directions in law, summation and other procedural aspects that would have been features of a typical jury trial. Of course, added to this would also be Counsel’s address being tailored to meet the salient points in a case without any emotional content that would often contribute to Counsel’s prolixity with a jury.
In retrospect, there appears to be a global trend towards the formalization of bench trials relating to the administration of the criminal justice system. For example, under New Zealand’s Criminal Procedure Act, 2011, there exists the provision under Section 73 of the said Act, for the election of trial by judge alone. Under the provisions of the Act, the modality of the trial is subject to whether or not the offence is of a serious nature, attracting a certain length of imprisonment, if any. Offences are categorized by classes, with Category 1 offences comprised of those not punishable by imprisonment, Category 2 offences generally punishable by less than two years’ imprisonment and Category 3 offences are those punishable by a term of imprisonment of two years or more, (other than a Category 4 offence). Lastly, Category 4 offences are those offences that are considered the most serious offences such as murder, manslaughter, treason, hijacking and genocide. Under the Act, judge alone trial is provided for instances where an accused has been indicted for an offence that would fall under Category 1 or 2. The Act provides that for Category 3 offences, the modality of trial depends on whether the accused elects trial by jury, that is to say failure to elect a trial by jury will result in the default position of a trial by judge alone. Category 4 offences are tried before a jury in the High Court unless an Order is made for trial by judge alone.
The extent to which the entrenchment of a bench trial is within the New Zealand jurisdiction and to which it has become attractive for accused persons, is perhaps best demonstrated in SC v The Queen [2018] NZSC 124. In this case the appellant, having been found guilty by a jury for a Category 3 sexual offence, appealed on the basis that his preference would have been for a judge alone trial, but at the material time this option was not disclosed to him by his trial lawyer. As to whether this point was merely taken because of a guilty verdict. is another matter but it certainly demonstrates the prominence that bench trials have taken within the administration of justice.
The prominence of bench trials is also to be seen in the Cayman Islands, where over a decade ago, the concept of bench trials was introduced through their Criminal Procedure Code. Section 129 (1-2) of their Criminal Procedure Code (2010 Revision) provides as follows:
- “If an accused person is of the opinion that, due to the nature of the case or of the surrounding circumstances, a fair trial with a jury may not be possible, he may, at least twenty-one days before the date of the trial or the date of arraignment, whichever is earlier, elect to be tried by a Judge alone; and such election shall be made by notice in writing addressed to the Clerk.
- Notwithstanding subsection (1), a judge may permit an accused person to make an oral or written election at any time before a jury is empanelled where such accused person has proven that, because of exigent circumstances, it was not possible for him to make an election within the time limit specified in subsection (1).”
Currently, as it is in the Cayman Islands, serious offences such as murder are almost routinely tried by judge alone. Indeed, one of the most celebrated criminal cases in that jurisdiction, R v Raziel Jeffers (unreported) in which the accused was charged for multiple murders, was at the election of the accused, conducted by judge alone.
In the jurisdiction of Belize, legislation also exist for the provision of trial without a jury in certain criminal matters. In this regard, reference may be made to the Indictable Procedure (Amendment) Act. The provision under the Act stipulates that where a trial is conducted without a jury, the trial judge shall have all the power, authority and jurisdiction which he or she would have had if the trial had been conducted with a jury. This includes the power to determine any question and to make any finding which a jury would have had to determine if it were present.
It is worthy to note that in Antigua and Barbuda in November 2020, the Bar Association was invited to review a Bill which is proposed to change how criminal cases would be heard. An important feature of this Bill is that it would eliminate the necessity for a trial by jury and therefore introduce bench trials. Based on the foregoing, it is safe to conclude that bench trials over the last decade or so have taken root in a number of jurisdictions and from all accounts, it appears that it will soon become the norm in a number of other jurisdictions yet to have it. Having made this observation however, there is no denying the fact that there remains still, a strong resistance to this mode of trial. The preference for jury trials, candidly speaking, may be due to the typical career path through which individuals become judges.
In the vast majority of cases, it is prosecutors who transcend to become judges. The perception, therefore, is that there will always be a prosecutorial bias and consequently in instances where such judges sit alone without a jury, an adverse verdict is likely to be the case in respect of an accused person. A study of the Supreme Court in 1991 in the United States of America (Tate & Handberg) suggested that a judge having a history of being a prosecutor was more likely to side with the State in criminal cases. In our jurisdictions, at the Parish Court, Supreme Court and Court of Appeal the judges have as their history more often than not, careers in prosecution. This however, it is submitted, has not translated into any bias in favour of the Crown. Indeed, as one example, the trial of serious offences in the Gun Court in Jamaica, done by judge alone suggests that the level of acquittals is far greater than the rate of convictions in which judges preside with a jury. Within this context, the perception of judges being biased in favour of the prosecution is in my view, a myth. The empirical data simply does not support this.
In essence, the method of trial by jury and the basis upon which verdicts are arrived at, have a high level of uncertainty. It is incapable of any real scientific method of assessment. For example, the perception that it is best to have a panel of female jurors preside in sexual offence cases because they are more judgmental of their own gender, does not always prove to be true. Equally doubtful, is the view that once members of the jury appear receptive by their facial expression to Counsel’s arguments, that a favourable result will necessarily follow for that Counsel’s case. In short, one is never able to properly analyse and go into a jury’s mind to conduct a post-mortem as to how a particular verdict was arrived at. This is made even more impossible with recent strictures. The reminder is given to jurors that they must never discuss or reveal what took place in the privacy of the jury room whether by talking or writing about it. See Chapter 3(1) paragraph 18 of the Supreme Court of Jamaica Criminal Bench Book.
In concluding, there is no doubt that the debate will continue as to which mode of trial, especially those involving serious offences is ideal. Arguably, the jury system presents itself as the best and most frequent opportunity for the ordinary citizen to participate in the justice system and determine how justice should be dispensed and what it should be. It incorporates and takes into account the various cultural nuances that will determine the proper interpretation and intent that may be given to a witness’ testimony. A single person in the form of a judge, may not readily appreciate these points and be able to apply them in his or her deliberation. Additionally, that it is the case that in civil proceedings such as certain defamation matters, there is still the option of a jury trial, any argument to take away from persons accused of murder having the right to a jury trial, should not be entertained. One may ask, what more egregious, defamatory statement is there, than accusing a person of being a murderer and then dictating that at his trial for such, he should not be tried by a jury of his peers?
For the advocate, a jury trial is the ultimate stage on which his or her skills are tested and mastered. A world without it would be inconceivable. What is for sure, is that specific legislation in which there is mention of judge alone trials, go hand in hand with the recognition of a jury trial. At the end of the day, pun intended, the jury is still out as to which mode of trial is the better option. In the interim, the suggestion is, to have our cake and eat it, by enjoying the option where the choice can be either.
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