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.