Tue | Nov 20, 2018

Justice must not only be done but appear to be done

Published:Wednesday | January 27, 2016 | 12:00 AM

Permit me to respond to Damian Wilson, senior public relations officer of the Ministry of Justice, in his article captioned 'Neita-Robertson's claims self-serving, false'.

Mr Wilson refers to my opposition to that part of The Amended Jury Act that reduces the Jury panel in non-capital Murder cases from 12 to 7 as "self-serving". I am not clear what he means, but I can assure him that my criticism of the reduction is in an effort to ensure that justice is not only done but appears to be done at all times in respect to each and every citizen of this country.

I welcome the debate presently taking place in the press, but this is the kind of exchange one would have expected to have taken place prior to the amendment. This matter is unarguably an important issue that required the consideration and full discussion of opposing views before a decision was taken. I am sure that no opposing view was presented to the members of parliament setting out the reasons the opposition to the reduction by defence attorneys at the criminal Bar.

Certainly this did not take place in Parliament in the period of the year 2015 when both the amendment and the vote were imminent. If a poll was to be taken, 95 per cent of defence attorneys at the criminal bar would have stated their opposition to the amendment and their reasons for doing so.

This is such an important matter that it required each and every member of parliament to have been fully informed of the reasons for our opposition to the amendment as one of the major stakeholders. Certainly it would have been important for each person voting to have exercised their vote from an informed position, as members of parliament do not always understand legal issues as the majority are not lawyers.

The concept of a jury of 12 was not arrived at because '12' is a magic number. It is a number arrived at through the experiences of many judicial systems in many jurisdictions over many decades. It has been tried and proven that 12 jurors provide a sufficiently wide cross section of the public to allow for diverse views and experiences and thereby considered decisions.

Smaller groups, by empirical evidence, have proven to be more susceptible to group deliberations, as there is a greater likelihood that they will come from the same group of persons and so have the same views.




Smaller groups have also been proven to be more likely to be influenced by outside intimidation, bias or implanted thoughts. Experiences in many jurisdictions have shown that 12 jurors provide a higher level of protection of citizens' rights. Imposing penalties for interference with jurors can only come about if persons are caught, and the reality is that interference with jurors is always done in secret and is often not detected.

Where is the empirical evidence that a reduction in number is the only means of having sufficient jurors? Already, the newly imposed increase in jury stipend has resulted in more jurors turning up for jury service.

The minister, in his article, acknowledges that batching the summonses in smaller numbers and distributing them wider for service would improve the availability of jurors. So the obvious question is: Why reduce the jurors to seven before taking the steps to improve the administrative process of service of summonses so as to provide sufficient jurors for a panel of 12 for serious cases such as murder"

Trial by 12 is not an "outdated arrangement" and "entrenched practice?, as stated by the hon. minister of justice, Mr Mark Golding. It is a number that is most likely to provide diverse views and experiences so as to make it more likely that a panel so comprised will arrive at a verdict that is FAIR and JUST. It is to ensure that justice is not only done, but is seen to be done. If the people do not feel they are getting justice, there can be no peace. There is a principle here that cannot be discarded for expedience, and it is prudent for us to ensure that all Jamaicans have confidence in the fairness of our trial process in order for there to be good governance.

We must live and govern by principle if we are to build a nation we can be proud of. Good government cannot pander to the views of small interest groups but must hold fast to the overriding principle that they must do what is in the interest of the people and protect their right to fairness and justice.

Please note that I have made no criticism of the other reforms carried out by the minister to improve the system. So let me just say here and now that he is to be commended for the many reforms to the system of justice. However, that commendation cannot and does not blind my eyes to the fact that the jury system is a part of the rule of law and the democratic system of government, and ought not to be whittled down. Even though there are problems, let us not throw out the baby with the bathwater because of expedience.

- Valerie Neita-Robertson is an attorney-at-law. Email: feedback to columns@gleanerjm.com