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Caribbean Legal System

The Jury

The Nature and Composition of the Jury


The jury system is an essential element of the democratic process. It
attempts to secure fairness in the justice system. Traditionally, the jury
system of has been viewed as a cornerstone of administration of justice
under the common law tradition. However, the use of jury system is on the
decline. Today its use differs, depending on whether (a) it is a civil or criminal
matter, and (b) in criminal matters whether it is summary or an indictable
offence.
The modern jury is composed of a maximum of twelve members.
Typically, in murder and treason, the jury consists of 12 members, while in
other criminal trials, it may be nine. 1 In civil matters the jury often consists of
nine members. Before this century, the jury system was widely believed to
be one of the chief safeguards of right against abuse of the judicial powers.
Trial by jury was felt to be an essential and inviolable right, as a security
blanket to ensure the liberties of citizens as against the state. As noted by
Lord Camden:
Trial by jury is indeed the foundation of our free constitution; take that away
and the whole fabric will soon moulder into dust.2
Therefore, the notion of a jury system as an essential feature of the
democratic process is not only contemporary one. Essentially, the jurys
purpose is to be the sole judges of facts. In contemporary times we believe
that, to be judges of fact, one must come to court ignorant of the facts.
1

See, eg, The Jury Act 1990 of Grenada, s 21


As quoted in Jackson, M, The Machinery of Justice in England, 7 th edn, 1997, Cambridge:
CUP
2

Impartiality in adjudicating is therefore based on ignorance of the facts. This


concept of a juror, peculiar to modern minds is
a body whose duty is to hearken to the evidence and return a
verdict
accordingly, excluding from their minds, all that they have not heard in
open court.3
Thus ideal for modern jury is complete obscurity. This means, if any
juror has knowledge for the facts, he must state this publicly. The need for
impartiality is demonstrated in the case of Howe v R.4 Here, one of the juror
had been present at a previous conviction of the accused. This was sufficient
ground to establish bias.

The Special Jury


A part from the common jury, outline above, there is in some jurisdiction,
such as Jamaica, what is known as a special jury. This jury usually consists
of person with special qualifications, whether profession or trade, which
relate to the matter being tried. The special jury may be used at the
discretion of the judge for certain important or complicated civil cases where
it is felt that specialized or technical knowledgeon the part of jurors is
essential for the efficient dispensing of justice. In the cases of special jury
system (see Jury Act of Jamaica s 24), strong reason must be given before
the court exercises its discretion. This was confirmed in the case of Police
Commissioner v Hinds.5 This is why it is perhaps seldom employed, although
given the complex matters involving finance, telecommunications and the

3
4
5

Devlin, P (ser), Trial by Jury, 1956, London; Stevens, p 2.


(1972) 19 WIR 517.
(1956) 2 WIR 302, Barbados.

like and given that judges may not have such expertise, the need for it may
have increased.

The Right to Trial by Jury


Despite the importance of jury trials to administration of justice and the
democratic process, there is no right to trial by jury in all cases. In the
Caribbean, as elsewhere, trial by jury seems to be diminishing in importance,
at least for certain type offences. There are several reasons for this decline.
Two of the most important are the rapid growth in the volume of litigation
and a general appreciation that juries are both unpredictable and infallible.
In determining the availability of jury, the first question is if the matter is
criminal or civil, if it is criminal then, it must depend on whether it is
summary or indictable offences.
Bahamas and Bermuda are the only two countries in the Commonwealth
Caribbean which has enshrined a constitutional right to trial by jury. In R v
Stone,6 the Jamaican court of Appeal disagreed that trial without a jury
violated any constitutional right, as trial by jury was not expressly or
impliedly entrenched in any provisions of the Constitution. Jury trials have
undergone further scrutiny in the region. In Re Eric Dariem, A Juror,7 the
appellant was summoned for jury service in the circuit court of Jamaica. He
asked to be excused on the ground that his conscience did not permit him to
take part in judging a person. He was refused exemption on the basis that
that was not a legitimate ground for exemption under the jury law. He then
contended that his objection fell within the provisions of the Constitution of
Jamaica designed to protect him in the enjoyment of his freedom of
conscience, and should be upheld on this ground.

6
7

(1977)25 WIR 458


(1974) 22 WIR 324

The Supreme Court of Jamaica while conceding that the jury service was may
have been an abrogation of such right it fell with the accepted limitation for
derogation of human rights in Jamaica, that is it was reasonably required in
the interest of public order and for the purpose of protecting rights and
freedom of others. This is because trial by jury was an essential part of the
law administered in the circuit court of Jamaica. Paradoxically, however,
while trial by jury may not be a constitutional right it is sufficiently important
to dislocate constitutional rights.
The election to summary trials
Even for indictable offences, there has been a growing tendency to allow an
alternative to jury trial. This is achieved by allowing certain indictable
offences to be tried before inferior courts and widening the jurisdiction of
such courts by extending the number of offences to be tried there,
sometimes called hybrid offences. This method logically resulted in a
diminution of jury trials. The fact that non-jury trial attract a lighter sentence
perhaps explaining the preference for the choice against jury trial in such
situations. Yet, there are those, who will prefer to take their chances with
what they perceive as a sympathetic jury.

Challenges to the Jury


To attain the ideals of representativeness, objectivity and impartiality in the
jury trials, there is a process known as challenging the jury. In this process if
it is believed that a particular juror is biased in anyway, either through
intimate knowledge of the circumstances of the case, or prejudice, he may
challenge and ask to step down if the challenge is found by the court to be
justified.
There are two types of challenges to the jury, challenge for cause and
preemptory challenge. A reason for the challenge is not necessary when the

right to preemptory challenge is being exercised, but a good reason, such as


suspension of bias, must be advanced before one may challenge or question
a juror for a cause.

A limited number of preemptory challenges are

permitted for each matter. The conditions for challenging jury selection are
expressed under statute.
A juror may also be challenged for cause. This is challenge without numerical
restriction, on the part of either the defence or the prosecution, alleging
some good reason why the juror should not be empanelled. Common reason
are bias on grounds of knowledge of the defendant, some other involve with
the case, or prejudice such as race or pre-trial publicity.
Discharging the Jury
It is within the discretion of the jury to decide whether a jurors misconduct,
irregular behavior or circumstances sufficiently prejudice the trial enough to
discharge him. Every accused in the commonwealth Caribbean has a right to
a fair trial. Discharging jurors or juries who may prejudice that trial is in
keeping with this principle. Note also in many cases a judge may decide that
although an irregularity has occurred it is not serious enough to warrant a
discharge, or, further, a new trial. The case of Gibson v R8; here, after the
commencement of a murder trial, the court discover that, one of the jurors
was the brother of the deceased. The juror was immediately discharged and
the trial heard by the remaining 11 jurors. On appeal the court held, that a
fundamental principle was raised, i.e. that justice must not only be done
but must be seen to be done. However, in this instance, the court did not
find that the right to a fair trial had been prejudiced. In Chaital v State,9 a
juror was allegedly seen speaking, during the break. The judge invited
council to the chambers and conducted an inquiry into the matter. He
decided that the matter was not sufficiently credible. To raise the possibility
of a miscarriage of justice. The judge held that the fact that one of the jurors
8
9

(1963) 5 WIR 450


(9185) 39 WIR 295

had held a conversation with a witness was not in itself fatal to the trial, once
the judge had investigated the possibility of a miscarriage and had in his
discretion decided that there was no miscarriage.
Discharging of Jury
In certain cases, on grounds of pre-trial prejudice, such as where there has
been wide spread publicity of a case, an entire may be prevented from
hearing the trial. This is in situation where the courts finds that the minds of
the jury have been so prejudiced, against an accused as to prevent them
from coming to an impartial decision. Where, this happens the trial may even
be moved to another town or city in an attempt to overcome this prejudice.
Examining the Merits of trial by jury
The efficiency and desirability of trial by jury is an ongoing debate. Perhaps
the most popular criticism made against the jury is the accusation that their
verdicts often run counter to the evidence presented in court. Desoran sees
this as one of the most crucial issues facing the jury system. He identifies a
tension area between strict areas of law on one hand and jury common
sense or compassion on the other.10
Several reasons may be advance for the apparent inconsistency between the
verdict and the evidence- chief of this is the extent to which the jury is able
to follow a judges instructions. The juries function is to arbitrate on facts not
law. The point of departure is the judges instruction. It is here that judges
direct where matters of fact are to be separated from matters law, and where
the substantive areas for jury deliberations are identified. If the jury is unable
to appreciate these esoteric distinctions, the jury process is corrupted. If the
judge misdirects the jury as to areas of consideration, the process is similarly
flawed.
Advantages of the Jury System
10

Deosaran, R, Trial by Jury- A case study, Trinidad and Tobago: ISER, UWI.

Many of the accusation throw at the jury system may be seen to be flawed
when examined more closely.
The assertion that juries are poor because of poor educational
standards, and their resultant inability to understand questions of law, is
exposed when one recalls their sole function as arbitrators of facts. The
jurys primary tool is common sense. Surely one does not need formal
training to acquire this. Is education really necessary to separate fact from
laws? It is more likely that more highly educated juror will place more
emphasis on procedures and instruction than those with only elementary
education. Those with elementary education is likely to be more interested in
opinions, testimony, and personal experiences, but it is in fact these which
concern the jury. It is the jurys task to assess the truth of witness statement
and adjudicate on the facts. It is only common sense that is needed here.
The fact that judges and lawyers may disagree with a jurys verdict does not
necessarily mean that it was not based on evidence and is wrong. The nature
of the jurys verdict does not necessarily mean that it was not based on the
evidence and was wrong. The nature of the jurys tasks, e.g. assessing the
credibility of witness, leaves room for difference of opinion, at least a margin
of error. In deed Lord Devlin believes that the jury is the best suited to decide
upon such primary facts, as a judge may fail to make enough allowance for
behaviour of the stupid.11
Similarly, the lack of legal training on the part of jurors allows them to bring
a fresh outlook, as opposed to the professional opinion of a judge who may
have become hardened and cynical after years of experience. Although this
lack of legal sophistication may mean at times that the jury is at the mercy
of the cunning and manipulative accused person. As Weeramanty argues:
The long judicial experience affords no special insurance against being
taken for a ride. Indeed, the insulations he has had from the ordinary
11

Op cit, Devlin, fn 3, p 168.

problem which beset the ordinary citizen may make him less discerning of
these problems in real life when they do occur.12
The sheer size of the jury is also an advantage in that it is unlikely that
individual prejudice could significantly affect the verdict. Both the jury and
judges can fall prey to social, political and other biases but, with the jury
system, the citizen has additional protection. His fate is not being decided by
a single individual. It may even be of psychological significance to the judge,
who is relieved of this heavy burden.
The jurys size also means that there is safety in numbers with regard to
potential corruption in the system. Indeed, the image of the infallible an
incorruptible judge is erroneous. Recently, in the commonwealth Caribbean
there has been instances of corrupt judges. 13 Trial by jury can therefore
uphold independence and integrity of the jury system.
Another important feature of the jury system is that it can dispose of hard
cases without changing the law. Where it seems that the proper application
of legal principles lead to a conclusion of guilt, but the verdict does not
reflect this, a judicial precedent is not created. Verdicts and judicial
pronouncement make no impact on the law itself as do binding
precedents emanating from a judge. The flexibility of the jury system there
allows a decision away from the rigidity of the law, without injuring the fabric
of the law.
The jurys verdict is also the expression of the jurys conscience, in that it
reflects the societys ideal and feelings on a particular issue. For example, a
jurys refusal to convict can be an expression of their revulsion towards the
death penalty or police brutality. Hence, the jury may be the yardstick of
public feeling and a safety valve against unpopular law.
12

Weeramaantry, CG, Judicial reasoning in common law, Ninth Commonwealth Law


Conference, 1990, New Zealand: Commerce Clearing House, p 86.
13
See, eg, newspaper reports of judges and justices of the peace being investigated and
prosecuted for corruption in Trinidad and Tobago: (1997) The Trinidad Express, 12 May.

Please see the following sections of the Jury Act 1898:


SECTIONS:
2, 6, 24, 25, 31, 33, 34, 40, 45

Reference
Antoine, B, R. (2008). Commonwealth Caribbean Law and Legal Systems (2
ed.). New York, USA:
Routledge-Cavendish Publishing.

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