Dear Editor,
Former Chief Justice Sir Burton Hall deserves great credit for having the insight and courage to address the anomaly and absurdity of constitutionally- guaranteed jury trials in The Bahamas. It is a sacred cow that too few in our region have dared question, even where, together with other ill-suited accoutrements of our inherited justice system, it is literally killing us.
Unfortunately, the jury trial system is too often viewed in almost romantic terms and wrongly presented as something that all civilized countries have in common.
In fact trial by jury in serious criminal matters is not the norm in France, Germany and most of continental Europe, places where few would argue fundamental human rights are systemically abused. Far from being some great universal feature of an advanced justice system, it is basically an English peculiarity, originating back when England was a peripheral place with no cultural followers.
The actual practice of jury trials came to England with Norse invaders, who brought their mythology. The number 12 representing the Gods of the Viking Pantheon, local chieftains would only submit to judgment by a panel of that number. So in its earliest forms, jury trials had nothing to do with ideas of balanced justice or human rights as we would understand them, but rather with superstition.
Gradually, the rationale for the practice morphed with the more rational need to control the power of agents of the Crown (courts) against commoners. The English constitutional settlements that resulted from Magna Carta, the 1645 Civil War and the Glorious Revolution of 1688 all reflected this concern that the lesser classes be afforded protection from the machinations of an otherwise all powerful Crown. Trial by one’s peers (a jury) was one such protection.
But as it has evolved from a medieval kingdom, England has in modern times moved beyond its fixation with jury trials and begun (most notably with the Criminal Justice Act of 2001) to abrogate the right to trial by jury in cases involving guns, drugs and organized crime. Incidentally, virtually all of the most serious crimes in The Bahamas today would fall into this category.
In England today, Parliament recognizes that times are very different from Magna Carta. Today, criminal underclasses have made whole societies ungovernable. Ironically, one such society (Jamaica) that has inherited the jury system from England and chose not to change it has sent so many “Yardie” gangsters back to England as to be the catalyst for the very 2001 law abrogating jury trials. In promulgating the new measures, then Home Secretary Jack Straw was reacting specifically to a string of incidents involving jury interference by Jamaican criminals.
Juries in Jamaica, as in The Bahamas, are a most ill-fitting tool to deal with the actual (rather than historic, or imagined) problems that face us. They are less professional than judges, far more susceptible to inducement and intimidation and easier bamboozled by crafty defense attorneys. Perhaps worst of all, their decisions are beyond appeal, even where irrationality is self-evident.
Judges, meanwhile, are today not vindictive agents of a distant tyrant, but professionals trained in the administration of justice, just as surgeons are trained in the workings of the human body.
Only a lunatic would argue that the final decision on whether brain surgery is advisable ought to be left to a panel of the patient’s untrained “peers”. Yet the final decision on whether someone accused of killing people should be acquitted and loosed into our population is today being made over and over by the untrained “peers” of the accused – some of them clearly irrational and others clearly on the take.
So mythology and evolution got England into its infatuation with jury trials and common sense and evolution appear to be getting her out of it. But unlike in England, access to jury trials in The Bahamas is codified into a written Constitution which, whatever aspect of Bahamian life it touches, it renders permanently immune to both evolution and common sense.
It then falls to bold and innovative leaders to address these items one by one, and head on. It is time we addressed the anomaly of automatic jury trials head on before it kills a few hundred more Bahamians.
– Andrew Allen
