The Criminal Bar Association (CBA) has called for legislation seeking to make judge-alone trials the default for criminal cases, to not be debated by Parliament before consultations with it and other criminal justice stakeholders.
CBA president Israel Khan, SC, made the call yesterday as he raised concerns over the potential impact of the Miscellaneous Provisions (Trial by Judge Alone) Bill 2023, which was debated in the Senate yesterday.
In a press release, Khan said: “The CBA wishes to express its disquiet at what is quite clearly another piecemeal erosion of fair trial protections guaranteed to citizens accused of criminal conduct.”
Judge-alone trials were introduced with the proclamation of the Miscellaneous Provisions (Trial by Judge Alone) Act in February 2019.
Under the original legislation, trials by judge and jury remained the standard for persons accused of indictable offences, with them having the option to select a judge-alone trial.
However, very few accused persons chose to exercise the option until jury trials were not possible with the closure of court buildings during the COVID-19 pandemic.
Under the new proposed legislation, judge-alone trials would become the default, with accused persons having the option to request a jury trial.
The bill seeks to reduce the number of jurors required for a criminal trial, with nine jurors instead of 12 being able to decide on the guilt or innocence of a person charged with murder or treason, who is facing the mandatory death penalty upon conviction.
Trials of all lesser indictable criminal offences would feature six jurors instead of nine.
It also seeks to replace special jurors with lay assessors.
Currently, the Jury Act provides for special jurors, who have qualifications in accounting, management, or finance, to sit on financial crime and complex fraud cases.
Lay assessors will have the same qualifications as special jurors but will be able to sit on a wider range of cases, including those related to misbehaviour in public office and human trafficking.
Lay assessors will have to provide reasons for their verdicts to the judge presiding over the case, while special juries, which are not frequently used, are currently only required to announce their verdicts like common juries in capital offences cases.
In the release, Khan gave a historical perspective of jury trials, as he sought to highlight their importance to the criminal justice system.
“Trial by jury ensures that a citizen is tried by a jury of his peers according to the prevailing moral values of ordinary men and women. As opposed to being judged by the unrealistic, self-serving and oft times hypocritical “ideals” of the ruling class,” Khan said.
He also claimed that the introduction of lay assessors was a further incursion into the fairness of trial by a jury of one’s peers.
“The CBA notes the unfairness inherent with the proposed introduction of lay assessors as well as its capacity to cause further delay to an already overburdened criminal justice system,” he said.
He suggested that the criminal justice system would benefit from other types of reform.
“It is the hope of the CBA that there would be a postponement of the Bill to allow for consultation, with the hope that legislation of a more useful nature can be brought to Parliament, legislation which deals with crime prevention, detection and speedy justice as opposed to a measure such as the 2023 Bill which serves to slowly erode the constitutional rights of citizens,” he said.
