Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

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.