Making judges alone trials work

However, we do not think it helpful to quibble, as Attorney General Faris Al-Rawi has, over whether trial by jury is a right. The formulation of the right as expressed in the Constitution is a right “to equality before the law and the protection of the law”. Al-Rawi is correct to say there is no explicit provision saying we have a right to be judged by our peers. But because this practice has for so long been a part of our legal tradition and because it touches on the profound need on the part of citizens to feel that they are being fairly treated by those in authority, it is more productive to focus on how the Trial by Judge Alone Bill 2017 will be perceived by citizens, not lawyers.

The bill proposes to give people a choice: a jury or a judge. We think the Attorney General is correct to suggest this could help tackle the obvious problem of the inadequacy of trial by jury. If there is one thing all the stakeholders agree on: the current system is not working. It is lengthy and convoluted, often due to the processes that must take place relating to: the selection of a jury; the management of information that is presented before a jury; and then the issuing of complex legal directives to that jury in terms of how the case is to be analysed by them.

Having a single judge, aware of the laws of evidence, balance the facts would be useful. Such a judge would be trained to impartially assess issues raised and would be able to do so in a more timely way. She or he would not have to deliberate with fellow jurors and would be able to conduct extensive paper reviews of much of the evidence. Trial by judge would also be useful in complex cases, such as those involving white-collar crimes. A judge with special forensic skills could be in a better position to examine evidence related to the complex schemes often alleged in cases of fraud and corruption.

Another benefit is the accused person gets to elect which mode of trial they would like, a degree of flexibility that currently does not exist. But it is no use ignoring the clear disadvantages. Trial by judge alone opens up a great deal of issues relating to the potential of judges to be compromised. More dangerously, it will make the law appear even more elitist and out of reach from the ordinary man. A jury of peers is a powerful tool because it side-steps this issue. The question is: can the State introduce other reforms that will deal with these disadvantages? To some extent, the issue of a single judge being easier to compromise can be tackled. For instance, there could be a beefing up of disciplinary measures surrounding judges.

The existing systems, involving the murky operations of the Judicial and Legal Service Commission, need to be re-vamped if judges are going to be given more profound powers. Also, it must not be forgotten that in-built safeguards already exist. There is an appeals process, meaning there are levels of insulation.

A person who feels they have been wronged can appeal. The State, then, has a duty to make this appeals process as easy as possible and to reduce its costs.

In any event, concerns about tampering seem ironic given the fact that there are concerns that tampering is already a hazard of the jury system! Still, if reforms are introduced, they must be accompanied by an increase in the number of judges and a better system of judicial management including in relation to disciplinary matters. This would require a bolstering of the independence of the courts from Executive interference. Until all these matters are dealt with, the public will not be convinced of the genuine merits of trial by judge.