Mr Ralph Ramkarran, SC, has recently advocated for the total abolition of trial by jury, that is, trial by one’s peers, in all criminal matters (Sunday Stabroek, October 6). At present, trial by jury is reserved for only certain offences. But it must be remembered that historically trial by jury was in itself an important and fundamental safeguard against unfair hearings by judges in criminal matters. In 1215, the barons of England demanded and extracted from King John the procedural right of trial by a jury of their peers. That procedural right formed part of the Magna Carta in 1215.
As a former colonial territory of the English, Guyana inherited the procedural right to trial by jury in indictable matters. But trial by jury was never a constitutional right under our Independence constitution of 1966 nor our Republican constitution of 1970 nor our reformed constitutions of 1980 and 2001. Being provided for in the Criminal Law (Procedure) Act, it was always a statutory procedural right in indictable matters in furtherance of a fair trial by an independent and impartial tribunal. Indeed, Article 144 (1) of the Constitution guarantees a “fair trial by an independent and impartial tribunal” but does not prescribe trial by jury. The question arises as to whether trial by jury is an indispensable requirement for a fair hearing even for serious offences. The answer must be in the negative since trial by an independent and impartial judge is not rendered unfair for reason of the absence of a jury. Trials without a jury happen all the time in High Court civil cases; and, at the Magistrates Court where sometimes really complicated criminal cases are determined.
Since trial by jury is not an indispensable requirement to safeguard against an unfair hearing even in serious matters, the question must be asked as to why trial by jury is still being retained as part of the architecture of criminal justice. At the same time, the question must also be asked: Why should trial by jury be abolished if it is per se an important safeguard in ensuring a fair hearing by an independent and impartial tribunal?
While it is true that judges should, as a matter of generality, be assumed to be independent and impartial, it is a matter of opinion as to whether they can be trusted by the general public and by the accused persons in particular to be impartial and independent in every case and at all times, especially serious criminal cases where the liberty and even life of the accused may be in jeopardy. After all, the judges are the state’s judges and all indictments are filed in the name of the state. Moreover, judges are assigned to cases, while the jury is selected at random and can be challenged for cause or without cause. While a judge conducts a case on the assumption of impartiality, a jury tries a case on the bases of statutory and non-statutory safeguards which, if scrupulously followed, seek to ensure impartiality. If the safeguards to ensure impartiality in the jury are not scrupulously observed, then there will be room for the failure of justice. In the case of trial by judge alone, there is little safeguard against partiality. There is only an assumption of impartiality. But, is it safe to assume that judges are, at all times, beyond reproach, like Caesar’s wife? Maybe, maybe not!
But, if the public and the accused in particular do not think so in cases of serious criminal charges like rape and murder and treason, there is no warrant for abolishing a system with its statutory and non-statutory safeguards. Absolutely not! Not in favour of trial by a judge alone who it is assumed will be impartial and independent.
Alternatively, the answer to the question as to whether trial by jury should be totally abolished in favour of trial by judge alone must depend on whether the statutory and non-statutory safeguards inherent in a trial by jury can systematically be implemented as a matter of practice in a trial by judge. Unless the systematic implementation of such safeguards can be assured, there is no warrant for the abolition of trial by jury. Placing faith in the general assumption of independence and impartibility of judges in this category of serious felonies is misplaced.
But since trial by jury was historically born out of the demands of the people for trial by their peers, it seems that there should be no reversion to trial by judge alone, unless there is general popular admission that trial by jury is no longer serving the public interest. It would be unwise to place judges in the unenviable position of being a substitute for twelve reasonable men on matters of fact-finding without popular public support.
But there is another lesson I have learnt over the years which makes me very hesitant in supporting this call by my learned friend and Senior, Mr Ramkarran. It has to do with the trials of Arnold Rampersaud in the 1970s and the Mahaicony Treason Three in the 1980s and 1990s and even Mark Benschop most recently in the 2000s. This lesson is best captured by a statement of an all-time great law lord, Lord Devlin, in his classic treatise ‘Trial by Jury.’ His Lordship made a comment therein that must resonate resoundingly in Guyana now, in view of the little and big Ceasars who are emerging in the political directorate. That comment goes thus: “The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next would be to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows freedom lives.”