Sun | Jul 25, 2021

Editorial | Who will pick up Justice Sykes’ gauntlet?

Published:Sunday | June 13, 2021 | 12:10 AM

Chief Justice Bryan Sykes’ latest assault on the jurisprudential merits of jury trial begs for a serious debate on the matter, including a philosophically grounded rejoinder from the defence bar, lest their resistance to bench proceedings is seen as a gut-driven, counterfactual response to a process that can help to unblock Jamaica’s overburdened court system and support for arrangements that are no longer useful.

At the same time, beyond the basic data he has previously offered on the matter, Justice Sykes should cause the Court Administration Division to commission a full, independently conducted, quantitative and qualitative analysis of the outcomes of bench trials compared to those with which judges sat with juries. Such a study should cover, say, the last decade and a half.

Previously, when Justice Sykes railed against the tendency of defence attorneys to be against their clients facing judges without juries – such as in his remarks last September at a church service to mark the start of the Michaelmas assizes in Montego Bay – his context was primarily the efficiency of the courts. For instance, in that September speech, he observed that in the face of the COVID-19 pandemic, and the need for physical distancing in courtrooms, trials were being delayed, adding to the backlog of thousands of cases in the court system. Yet, agreeing to bench trials was a rarity.


He argued that by failing to opt for such trials, lawyers were “actively involved in violating the constitutional rights of their clients, which is the right of a fair trial within a reasonable time”. Except for Gun Court cases, in which there are only bench trials, the defence and the prosecution have to agree in writing to trial without jury. However, in several cases in Jamaica, the most prominent being Trevor Stone vs The Queen, on which the Privy Council ruled in 1980, the courts have held that the right to a jury trial isn’t a constitutional guarantee. It is right now established by statute.

Justice Sykes has also rejected the presumption that jury trials were inherently better for accused persons, when it comes to verdicts, when judges only preside. He has also pushed against a perception that because judges come mostly from the prosecution bar, they tend to favour prosecutors.

In fact, based on the statistics provided by the chief justice, the contrary is true. At a rare press conference for the judiciary last October, the chief justice said: “What the data is telling us is that in the circuit courts and the gun courts, when they have bench trials, the conviction rate is 37 per cent. In the jury trials, it is 46 per cent. It really begs the question: Are judges as biased as persons are suggesting?” Unfortunately, the details of the analysis referred to by Justice Sykes were not shared with the public. It is not clear when it was done, the period it covers, the controls applied to the data and its analysis, and whether there were qualitative issues that were, or ought to have been, taken into account in the study.

These questions apart, it now seems that Chief Justice Sykes has more fundamental concerns with jury trials than judicial efficiency. Based on his remarks last week at the opening of a session of the circuit court in the parish of Trelawny, at which he is presiding, Justice Sykes perhaps harbours deeper philosophical and practical questions of the ability of the jury system to deliver a quality of justice comparable to that of a judge sitting alone.

He said: “You have judges who have a number of years of experience before they are appointed and attorneys who need certain qualifications to practise. Yet, all a juror needs is to be able to read and write.”


The chief justice also raised concerns about the process in which juries go about the exercise, listening to long cases, mostly committing information to memory while others around them make notes. “You see attorneys with notebooks, the court reporters making notes, yet jurors are expected to sit and remember everything. The justice system needs to evolve.”

While Justice Sykes hasn’t called for the total abolition of the jury system, his remarks would reasonably be interpreted as belonging to someone who believes that the concept of being judged by a jury of your peers may be fast losing, if hasn’t yet lost, its usefulness in the 21st century. Justice Sykes is an influential voice that was no doubt heard by lawmakers. It will also have commanded the attention of policymakers.

This newspaper has agreed with the chief justice that more use should be made of bench trials and of their potential for ensuring greater efficiency in Jamaica’s courts. We, however, need more convincing about abolishing jury trials, and thereby a total dissolution of the principle of an accused person standing before his peers to be held to account.

Chief Justice Sykes has, as it were, thrown down the gauntlet. The defence bar, and others with other ideas on the matter, can either accept the challenge of his philosophical debate or concede the argument, in which event, the days of the jury trials may well be numbered.