Sun | Oct 25, 2020

Jury trials enshrined in Constitution – Wildman - Attorney rebuts claim by chief justice

Published:Saturday | September 26, 2020 | 12:11 AMBarbara Gayle and Paul Clarke/Gleaner Writers
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Attorney-at-law Hugh Wildman says he wants to make it abundantly clear to the public that it is not true that there is no right to a jury trial in Jamaica.

Chief Justice Bryan Sykes said this week that the COVID-19 pandemic had forced many changes upon the justice system. One of those changes highlighted by Sykes is a shift from jury trials to judge-only trials.

He said no one has rights to a jury trial. “The right that is guaranteed is a right to a fair trial with a properly constituted and impartial court.”

However, Wildman told The Gleaner yesterday that Chief Justice Sykes was wrong when he stated that there was no right to a jury trial but a right to a fair trial.

He said the chief justice was referring to the Jamaican case of Trevor Stone which was decided in 1980 by the United Kingdom Privy Council which is Jamaica’s final appellate court.

Wildman explained that in that case, the Privy Council said that there was no entrenched right to a trial by jury under the Constitution of Jamaica.

“However, the Privy Council recognised the existence of the right to trial by jury under the Constitution which can be abolished by statute. That right is recognised as part of the common law which was saved by the Constitution in 1962 when Jamaica became independent and got its Constitution. The right to trial by jury was saved under section 2 of the Constitution and is called the saving law clause.”

Pre-existing laws

Wildman said it was that clause which saved all the pre-existing laws and made them legal under the Constitution of Jamaica.

He said the principle was recognised in 1967 by the Privy Council in the leading Jamaican case of Nasralla against the director of public prosecutions. He said in that case Lord Morris made the point with the principles of autrefois acquit and autrefois convict.

Wildman explained that the Privy Council recognised that a person cannot be tried twice for the same offence and that principle which was part of the common law in England and was saved by section 2 of the Constitution of Jamaica

Although jury trials were not enacted as part of our Constitution, they remain as part of the common law and can only be abolished by an Act of Parliament, Wildman asserted. He said Parliament has not abolished jury trials but has amended the Criminal Justice Administration Act to allow for accused persons to consent for trials with judge alone which hitherto could only be tried by a jury.

“It is therefore wrong for the chief justice to state that jury trial is not part of the law of Jamaica,” he said.

Wildman stressed that the judiciary was not a lawmaking institution and under our system of jurisprudence had the function to apply the law.

‘It cannot abolish trials by jury by judicial power because that would be an encroachment on the separation of powers doctrine which is part of the Constitution and a usurpation of the powers of Parliament,” he said.

“Until Parliament has taken steps to abolish jury trials, no judge can arrogate unto himself the power to abolish jury trials,” he emphasised.

Senior attorney Frank Phipps, QC, told The Gleaner that judge-only trials are nothing new, as it has been the trend for some time.

“I was surprised to see our chief justice lending support to this broad sweep for trials by judge alone. I have always regarded him as a strong proponent of common law principles where trial by one’s peers is a fundamental provision for a fair trial,” he said.

According to him, the Office of the Director of Public Prosecutions has for some time been asking for a bigger broom to sweep up criminal justice for reasons best known to it.

Phipps reasoned that for present considerations where close gathering of persons are prohibited, modern technology should be able to accommodate trial by jury to which the public has access.

He said only an “ill-advised government” would take such a giant step for trials by judge alone.