Editorial | Defence Bar should get on with it

In the absence of more substantial and better-reasoned arguments to the contrary, Chief Justice Bryan Sykes stands on firmly logical grounds in his call for an increased use of bench trials, or trial with judges alone, to help prevent a backlog of cases during this period of COVID-19 epidemic.

This proposal, though, is not only of practical operational value, in keeping with the chief justice’s drive for efficiency in the courts. It has roots, too, in a larger philosophical construct, distilled in the aphorism: justice delayed is justice denied. Or, put differently, accused persons, as well as victims of crimes, and people whose rights are breached, are owed a fair trial within a reasonable time.

The issue at hand is that since the onset of the novel coronavirus in Jamaica in March, trials by jury have been suspended. That was a sensible thing to do. The virus, for which there is as yet no proven, or provenly safe, vaccine, is spread mainly by inhaling or ingesting aerosolised droplets of infected persons.

The best deterrent, up to now, to the spread of the disease is the wearing of masks, maintaining recommended physical distance, and frequent sanitisation. Jamaica’s courtrooms and related facilities are not the easiest environments within which to robustly maintain these protocols. Juries of between seven and a dozen people, lawyers, judges, stenographers and other supporting staff are packed together in tight spaces. Hence the suspensions.

PUSHBACK

Last week, at a church service marking the opening of the Michaelmas assizes in Montego Bay, Justice Sykes pressed the case for trials by judges alone, even as he admitted the pushback by defence lawyers.

“I understand that there are attorneys who are reluctant to embrace bench trials in the Supreme Court,” he said. “So we have already had one term, that is last term, where jury trials didn’t occur. We are now in this term, where we are not having jury trials. So it’s roughly nine months going up to the end of December where we will not have jury trials.”

The defence Bar has not formally taken a position on the matter. It appears, however, that opposition arises on two fronts. One is the presumption of an inherent bias of judges in favour of the prosecution. The argument is that most judges accede to the bench from the prosecutors’ chambers, rather than the private Bar, thus are kindred spirits with prosecutors. The other issue, deeply entrenched in the ideas of liberalism, is of the logic of lay involvement in criminal trials – that an individual ought to be judged by a jury of his peers, rather than only a professional judge.

On the former question, this newspaper sees, and has been offered, no evidence of this inherent bias. We are, however, open to persuasion with empirical evidence, including data, to the contrary. The defence Bar, perhaps in conjunction with one of the law faculties in Jamaica, could perhaps analyse the outcomes of criminal cases over a period, matching them with the trial judges, the evidence that underpinned the decisions, and what happened at appeal.

Regarding the other plank of the lawyers’ unease, it is settled law, including cases such as Trevor Stone v The Queen and the Eric Darien matter, that there is no constitutional right to trial by jury in Jamaica. Indeed, in the Caribbean, only the constitutions of The Bahamas and Bermuda establish such a right.

GUARANTEED PRIMARILY BY STATUTE

Insofar as jury trials are guaranteed, this is primarily by statute. Or, as Justice Sykes observed: “There is nothing in the new charter (of fundamental rights and freedoms establishing jury trials) ... In fact, the word ‘jury’ isn’t even mentioned. So, as it presently stands … there is no right to a jury trial. The right that is guaranteed is a right to a fair trial before a properly constituted and impartial court. And in the event of an adverse verdict, the system provides the mechanism by which any injustice can be addressed. ”

In most instances, accused persons can agree to forgo jury trials. In this environment, if they do not, it is likely to mean longer periods of incarceration without conviction, or, if they are on bail, existing in a sort of legal purgatory. Notably, there is nothing in Justice Sykes’ administrative and, more important, jurisprudential disposition that suggests his intention is other than seeing the dispensation of justice in a timely manner, as was reflected in his 2018 ruling Mervyn Cameron v the Attorney General. In that case, he not only ordered a definitive timeline for a case to be heard, but awarded “constitutional damages” to the plaintiff whose trial had been inordinately delayed as “compensation for the breach of his constitutional rights under Section 14(3) of the Constitution”. That clause says:”Any person who is arrested or detained shall be entitled to be tried within a reasonable time …”.

If lawyers have deeply persuasive arguments why bench trials should not proceed, let us hear them. Otherwise, they should proceed. Which does not forestall a separate conversation on the philosophy and merit of jury trial.