The brew­ing con­tro­ver­sy over the judge alone tri­al leg­is­la­tion, which was de­bat­ed in the Sen­ate on Fri­day, is sur­pris­ing and quite un­nec­es­sary.

In a let­ter to the Clerk of the Sen­ate on Fri­day, the Law As­so­ci­a­tion of T&T (LATT) framed its re­sponse to the leg­is­la­tion as though it is a threat to abol­ish tri­als by ju­ry.

This nar­ra­tive has been tak­en up by var­i­ous at­tor­neys, in­clud­ing one south­ern lawyer who was quot­ed as say­ing: “Any at­tempt to im­pose judge-on­ly tri­als in Trinidad and To­ba­go is the most bru­tal as­sault on jus­tice that I can imag­ine.”

The con­tro­ver­sy is sur­pris­ing be­cause no one read­ing the com­ments of some at­tor­neys would be­lieve the right of cit­i­zens to a tri­al by their peers, if they choose, re­mains en­shrined in the laws of this land.

The LATT, and those at­tor­neys who be­lieve the Gov­ern­ment is in­tent on in­fring­ing tra­di­tion­al rights af­ford­ed to cit­i­zens, must be aware there is ex­ist­ing leg­is­la­tion that gives ac­cused per­sons the op­tion of choos­ing a judge-on­ly tri­al.

That leg­is­la­tion, the Mis­cel­la­neous Pro­vi­sions (Tri­al by Judge Alone) Act, ac­com­mo­dat­ed tri­al by judges with­out ju­ries and came in­to op­er­a­tion through Pres­i­den­tial procla­ma­tion on Feb­ru­ary 1, 2019.

That means ac­cused per­sons have been af­ford­ed the op­tion of a judge alone tri­al for more than four years now.

The leg­is­la­tion now be­fore the Sen­ate would, if passed in­to law, amend sec­tion 6 of the Crim­i­nal Pro­ce­dure Act by in­tro­duc­ing a new sub­sec­tion that “would pro­vide that an ac­cused per­son com­mit­ted for tri­al on an in­dict­ment must be tried by a Judge alone un­less the ac­cused elects to be tried by a Judge and ju­ry, or the court di­rects for the ac­cused to be tried by a Judge and ju­ry.”

In oth­er words, the cur­rent at­tempt to amend the leg­is­la­tion pro­pos­es to make tri­als by judge alone the de­fault po­si­tion, but still al­lows the ac­cused to elect to be tried by a ju­ry of their peers, who would be guid­ed by a judge.

So, if the cur­rent amend­ments pre­serve the rights of an ac­cused to opt for a tri­al by a judge and ju­ry, what is the cause of the hys­te­ria in some of the com­ments on this is­sue?

As has been made clear from some oth­er, more in­formed com­ments, it is clear At­tor­ney Gen­er­al Regi­nald Ar­mour has mis­read the amount of con­sul­ta­tion this leg­is­la­tion re­quires.

Much of the com­men­tary on this is­sue has been made with­out the ben­e­fit of da­ta: for ex­am­ple, a sub­set of the de­bate per­tains to whether cit­i­zens are will­ing to serve on ju­ries. Sure­ly, it should not be dif­fi­cult for the At­tor­ney Gen­er­al to re­quest of the Ju­di­cia­ry the num­ber of peo­ple who have sought ex­emp­tions from sit­ting as ju­rors, for ex­am­ple, for the three years pre­ced­ing the COVID-19 lock­downs. But such an ex­er­cise would al­so re­veal the num­ber of cit­i­zens who have opt­ed to do their civic du­ty by serv­ing on ju­ries.

If the At­tor­ney Gen­er­al be­lieves that judge-alone tri­als would be quick­er and, as a re­sult, less ex­pen­sive, he should con­sid­er a white pa­per on the is­sue that looks at ex­pe­ri­ences of judge-on­ly tri­als around the world and as­sess­es their ad­van­tages and dis­ad­van­tages.

Per­haps such a white pa­per can be the ba­sis of the wider con­sul­ta­tion that most agree this is­sue needs.