THOSE WHO recognise the importance of the rule of law and the long established procedures for protecting it may well be surprised by some of the judicial changes proposed by Mr. Kent Pantry, the Director of Public Prosecutions, at a forum on criminal violence in Jamaica held at the University of the West Indies. There is no doubt that Jamaica's creaky and outdated court procedures need reforming to clear the increasing backlog of cases in the system, but the sudden awakening from slumber into a flurry of radical recommendations needs to be drawn to attention for public debate.One startling recommendation is that the prosecution in a criminal case should have the right to appeal a jury verdict of acquittal. This would be anathema in America as a violation of the provision in the United States Constitution against double jeopardy, the doctrine that a person cannot be tried twice for the same offence. This doctrine dates back to Roman Law and has been a cornerstone of English Common Law for over 800 years. Nevertheless, there has been movement in the United Kingdom to permit such appeals under very limited circumstances, a movement vigorously opposed by those who see it as an invasion of the doctrine of presumption of innocence which Senior Superintendent Reneto Adams has belittled as being mere semantics. We hope Mr. Pantry is not leaning to this view.
At first blush, Mr. Pantry's further suggestion that a majority rather than a unanimous verdict in a murder trial should be sufficient for conviction also seems a radical change despite his argument that in Jamaica one or two jurors are easily bribed or intimidated, allowing criminals to escape punishment as a result. Perhaps such a change might be palatable if restricted to non-capital homicide and a two-thirds majority vote.
Mr. Pantry's suggestion that Preliminary Enquiries be abolished because they take up too much of the court's time has much to recommend it. The present system exposes witnesses to being intimidated or assassinated, the dangers of which would be less if they only had to appear at the substantive trial where the lack of probable cause can be tested by a "no case" submission.
It is also proposed to abolish the practice of allowing the accused in a criminal case to take the stand to make an unsworn statement which cannot be cross-examined to test its credibility. Unsworn statements are unknown in America and have recently been abolished in the UK.
At the UWI forum Mr. Pantry made a number of other technical submissions which need careful evaluation. He, however, apparently remained silent on two vital recommendations of the PERF report, namely plea bargaining and the granting of immunity in exchange for testimony against a conspirator. Despite academic and philosophic reservations about such procedures, as a practical matter they are as necessary in Jamaica as they are in America to prevent the criminal court system from grinding to a halt which, on balance, is a more serious subversion of justice.
If, after due deliberation, some if not all of Mr. Pantry's recommendations are found to have merit, we hope that the necessary amendments to existing laws will be made; and we trust the Bar will be proactive in adopting them and not fall victim to its own comfortable inertia.
