Damian Wilson: Neita-Robertson's assertions self-serving, false
The Ministry of Justice wishes to respond to the article 'Jury Act revision a danger to justice', written by attorney-at-law Valerie Neita-Robertson, which was published in this newspaper on Saturday, January 16, 2016.
The problems plaguing the jury system have been a significant contributor to the delays in disposing of criminal cases in the Circuit Courts. The provisions in the law have made it difficult to raise sufficient numbers of jurors to serve the current needs of the criminal justice system. Cases that were ready for trial have often not been able to proceed because of these difficulties, and this has been a contributory factor to the backlog of cases.
The Ministry of Justice responded to this situation in 2013 by developing a position paper with proposed reforms to the jury system, which was shared with key stakeholders, and they were invited to provide their comments. The records the ministry show that 14 agencies and organisations were consulted, including the judiciary, the Jamaican Bar Association, the Advocates Association of Jamaica, the Northern Jamaica Law Society, the Jamaica Civil Society Coalition and INDECOM. The comments received from them were taken into account by the ministry in the development of the Jury (Amendment) Act.
The comment that these amendments to the Jury Act "came upon us like a thief in the night" is both inaccurate and dismissive of the extensive efforts at consultation. The assertion that these reforms were politically motivated is both false and unfortunate. These amendments were supported by both sides in both Houses of Parliament. Indeed, in the Senate, which includes nine lawyers, some of whom are leaders at the criminal Bar, useful contributions were made and taken on board in fine-tuning the bill during the debate.
ROOM FOR IMPROVEMENT
It should also be noted that one element of the reform, relating to using the Taxpayer Registration Number (TRN) list to augment the potential pool of jurors, commenced under the previous administration.
Some of the reforms enacted by the Jury (Amendment) Act 2015 include:
1) The reduction from 12 to seven in the number of jurors in non-capital murder cases. This approach is consistent with the existing treatment of other non-capital offences that potentially attract a sentence of up to life imprisonment such as manslaughter, rape and grievous sexual assault.
2) The reduction in the number of peremptory challenges (i.e., challenges to jurors without having to show any cause) allowed to both the prosecution and the defence. It should be noted that some jurisdictions such as the United Kingdom have abolished peremptory challenges altogether.
3) A new provision allowing for trial by judge alone in non-capital cases, where the prosecution and defence mutually agree.
4) The prohibition of the taking of any adverse action by employers against employees who are required to serve as jurors.
5) An expanded list of potential jurors from a combination of the voters' list and the list of persons holding TRNs. While the first attempt at this was enacted in 2010, it was not implemented because of the exorbitant cost of printing entailed in applying the amendment to the existing procedures. This is being addressed in the 2015 act through provisions facilitating the consolidation of both lists into a master list and the electronic transmission of the master list to the relevant actors within the justice system.
With the passing of the 2015 act, the minister has also made an order reducing the categories of persons who are exempt from jury service. The order will enlarge the pool of potential jurors, which, significantly, will now include persons employed in the public sector. The order, along with the act itself, will come into operation on February 1, 2016.
On the matter of service of jury summonses, the ministry acknowledges that there is room for improvement, and this matter has been pursued with the Jamaica Constabulary Force, which has been encouraged to establish an internal protocol whereby the summonses are batched in smaller numbers and distributed by police stations for service to citizens within the jurisdictional areas served by each police station. The route of outsourcing the service of summonses has also been considered but has not been pursued to date, in part because of the attendant costs and limited fiscal space.
As regards the concern raised by Mrs Neita-Robinson about panels of seven jurors being more vulnerable to potential bribes than a panel of 12, legislation is at an advanced stage of development that will significantly stiffen the penalties for obstructing or perverting the course of justice, including any form of unlawful interference with jurors.
Mrs Neita-Robertson's assertion that defence attorneys are "given basket to carry water" while "the prosecutorial arm gets everything they ask for" is self-serving and not borne out by the facts. The prosecution has fulsome disclosure obligations (now codified in a comprehensive Prosecutor's Manual published by the DPP) in relation to the evidence on which they intend to rely, while the defence has the tactical advantage of minimal (if any) obligations to disclose its case to the prosecution prior to leading the evidence in the trial.