Jury still out on court reform
The recent amendment to the Jury Act that now allows non-capital murder cases to be presided over by a panel of seven jurors instead of the traditional 12 is yet again demonstrative of the myopic view that our current legislators have as their solution to the problems that plague our justice system. The solution always seems to be a rush to amend existing legislation and/or creating new ones with the expectation that the wheels of justice will begin to move at an acceptable pace. This is not likely to happen.
As I understand it, a large part of the rationale for a reduction in the number of jurors presiding over non-capital murder cases from 12 to seven has to do with challenges in empanelling a 12-member jury in circumstances where the jury pool is not sufficiently populated. This is so, especially in the instances of multiple accused trials.
Sometimes, cases, therefore, are postponed because of an insufficient number of jurors to preside. This comes against the background that defence counsel and prosecuting counsel each possess the right in law to seven pre-emptory challenges in so far as the empanelling process of jurors is concerned. Effectively, therefore, in order to take into account the full use of pre-emptory challenges by the defence and prosecution, a total of 26 jurors would be required for the jury pool when one is seeking to commence a trial presided over by a 12-member jury.
NOT THE BEST WAY FORWARD
Against this background, the amendment to the Jury Act reducing the number of jurors to seven in a non-capital murder case at first blush may seem reasonable and the way to ensure commencement of trials. This, however, is not the best way forward, and indeed the empirical evidence suggests that whether a reduction from 12 to seven, or no jurors at all (which I might add, seems to be where we are heading), does not materially result in speedier trials.
To this end, one only has to examine the trials of matters by judges alone. Cases are often postponed because of the absence of witnesses or counsel, incomplete investigations, or simply because other trial matters are in progress. These issues are, to a large extent, the root of the problem in getting trial matters started. A reduction in the number of jurors presiding over certain trials, therefore, cannot be a solution to the problem.
Just as how amending existing legislation is not the solution to the problem within the justice system, the creation of new legislation without careful thought will not help either. In this regard, we run the risk of making criminals out of innocent persons, all of whom contribute to the long list of cases to be tried.
PROCEEDS OF CRIME ACT
A perfect example of this is the Proceeds of Crime Act which was created in 2007. Section 101(a) of that act makes it a criminal offence for anyone participating in a cash transaction that exceeds US$10,000, or its equivalent, in any other currency where such a person fails to make a report to the relevant authority prescribed by the act. This section of the act has seemingly caught many car dealers and businessmen by surprise, some of whom are now before the criminal courts.
It is alarming that the business community and its respective associations have not lobbied publicly for a review of that portion of the Proceeds of Crime Act. In all of this, however, perhaps what is most alarming is the fact that the condition in which we find ourselves, as alluded to earlier in my opening commentary, operates in an environment where the current constitution of our Parliament is perhaps made up of the greatest number of lawyers ever in our history. In this regard, one would, therefore, have thought that a greater appreciation and sensitivity to what is really required to solve the problems within the justice system would be evident. Alas, this is not the case, and, therefore, the old adage rings true: Common sense is not so common after all.