Editorial | Bench trial review

With Chief Justice Bryan Sykes having again warned of the unlikelihood of Jamaican judges “trying” their way out of the backlog of cases in the island’s high court, it is past time that Delroy Chuck, the justice minister, keeps his promise to have Parliament consider making bench trials the default for indictable offences. It is two years since Mr Chuck’s last publicly undertook to act on Justice Sykes’ concern, but the matter has been on the agenda long before then.

In tandem with the judges-only question, Minister Chuck must also undertake an overhaul of the jury system to close the loopholes on a wide range of exemptions from jury service, as well as initiate a serious discussion on why the available plea-bargaining arrangements are so little used in Jamaican courts.

Since his appointment as head of the judiciary nearly eight years ago, Justice Sykes has been persistent in his advocacy for bench trials, insisting on the efficiency of judges trying cases without juries, without any damage to the quality of justice that is rendered.

The chief justice stepped up his campaign during the COVID-19 pandemic when social distancing made it difficult to empanel juries – exacerbating a long-standing crisis of too few jurors turning up for court – thus bringing court hearings to a crawl.

REPRISED THE ISSUE

Justice Sykes reprised the issue this week, using a swearing-in function for new judges to highlight the backlog of approximately 3,000 criminal cases in the High Court – a third of them at the Home Circuit Court in the capital – and reform initiatives in Britain, including greater of use of bench trials, to address their own problem of overburdened courts.

“We cannot try our way out of the backlog that we have,” the chief justice said in pressing the case for bench trials, while noting the moves in England and Wales to have fewer cases tried by judge and jury.

“The home of the jury system is now saying maybe we need to rethink the jury system,” he said.

Indeed, in England and Wales, with a backlog of 78,000 cases (around 618 per 100,000 population, compared to Jamaica’s High Court ratio of 108 per 100,000), matters for which the sentence is likely to be under three years will be tried by judge only.

The UK reforms also include:

• magistrates (parish judges in Jamaica) having power to hand down longer sentences, of up to two years, thereby freeing higher courts to deal with more serious matters;

• judge-only trials in technical, and potentially and lengthy fraud and financial matters, relieving jurors of burden of spending months hearing these cases;

• giving judges greater powers to decide where cases are held;

• maintaining the guarantee of jury trials for the most serious offences, such as rape, murder, aggravated burglary, blackmail, people trafficking, grievous bodily harm, and the most serious drug offences.

Additionally, this week, Dave Lammy, the UK’s justice minister, announced a drive to recruit 2,000 magistrates to boost the 2,000 who have joined the system since 2022. There are now over 14,000 magistrates in England and Wales, or around 24 for every 100,000 residents.

JUDGES ONLY

In Jamaica, while cases tried in the Gun Court and indictments under the anti-gang legislation are tried by judges only, the default, on the basis of statutory law, is for jury trials, although Justice Sykes consistently points out that this is not a constitutional requirement. Jamaica’s Constitution calls for fair trials within a reasonable time by appropriately and legally constituted courts. Outside of the limited areas, bench trials have to be by agreement, in writing, between the defence and the prosecution.

Responding in 2024 to Justice Sykes’ bench trial advocacy, Minister Chuck noted the strong support among lawyers for jury trials, but promised to take a submission on the issue to Cabinet. He also pledged to refer the question to a Joint Select Committee of Parliament, “to listen to the varying views as to how we can improve the jury system, or, if it can’t be improved, to remove it, as the chief justice has argued”.

We don’t know if the submission ever went to the Cabinet. It hasn’t reached Parliament.

And apart from raising the stipend to empanelled jurors to J$6,000 daily (up from J$2,000), nothing significant has happened to deal with the persistent absenteeism of jurors, especially middle-class professionals, or to bring a larger group of people to the jury pool. Often, while hundreds of people are called to jury duty only single digit amounts turn up.

Mr Chuck should provide an urgent update on how he has proceeded on these issues, including if at all they will be acted upon.

His ministry should conduct a survey of defence and prosecution lawyers to determine the reasons for the seeming reluctance to plea bargain in criminal matters, and if the law, as it exists, needs to change.

The parish courts have to be applauded for removing their case overhang and making their disposition of matters current. But, as Justice Sykes’ alluded to, High Court cases tend to be more complex, requiring more time and resources. Something has to be done to get the system over the hump.

That would be good for justice, which is good for all facets of society.