THE EROSION OF JURY SUPREMACY – A RECIPE FOR DISASTER

Jul 27, 2008 AFC Column, Features / Columnists

An edited address in the National Assembly 24th July 2008 by K Ramjattan (AFC Chairman)
re Debate on the Court of Appeal Amendment Bill 2008

Sometime ago in this Assembly, I had argued the case that there must be in place a Law Reform Commission.

Expert advice on the need and priority for changes in our law, expert advice on what changes have been occurring around the common law world from which we can extract as we see fit, expert advice as to what may be appealing but troublesome so as to avoid an unmeritorious adoption thereof, could have been forthcoming from such a Law Reform Commission. But “No!” said the A.G. and the Government he represents.

Setting up such an institution which is necessary to archive the reasons why we pass the laws we do, so that we can have institutional memory to fall back on, would have been a great credit to this country especially in this important field of criminal law and criminal justice.

Our criminal law and criminal justice system are in a mess. And one of the methods to clean up such a mess is through the efforts of a Law Reform Commission.

Research, at a serious level, on points of policy and principle, on points of pros and cons of a law can be done by such a Commission before a deliberation occurs here, before we legislate in this National Assembly.

This Amendment Bill introduced with the purpose of continuing Government’s criminal justice reform would have been found by such a Commission as only adding to that mess and being a recipe for disaster.

Mr. Speaker, this Government feels that because that mandate has been granted to it to legislate then it must only legislate to further fortify the position of the State.

It fails to appreciate that the other obligation is to pass laws which must improve the lives and lot of its citizens, and to fortify the system which will give a greater justice to such citizens.

This Amendment which seeks to provide for appeals by the D.P.P. to the Court of Appeal and thereafter as of right to the C.C.J., against the acquittal of an accused will not improve the lives of a whole lot of citizens. The lot of the accused will be made more horrible.

So, too, the lot of all those involved in the trial process – witnesses, the Police, the jury, the Judge, and even the entire system, because of the inundation these appeals will have on it. This is readily foreseeable.

So why bring this Amendment? This Government will argue that since the accused has the right to appeal his conviction, then the State should have the right to appeal an accused acquittal.

The acquittals rate these days are soaring but that is not due to the fact that the State does not have such a right of appeal.

And now that the State will be given that right to appeal, I warn that it would be foolhardy to conclude that there will be, from now on, more convictions and less acquittals.

More convictions will only happen when there is an improved quality of the investigation of crime, and a high quality prosecution at the trial thereafter. Both these phases require a sustained effort at training the personnel, keeping abreast and advancing with the technologies which assist in detection, and having advocates at a trial process who apart from articulating in a manner to convince a jury, must also be sharp enough to counter the stumbling blocks any good Defence Counsel will legitimately mount. Just like our AG used to do and my colleague, former AG, Mr. De Santos still does.

Improving and strengthening the three P’s – policemen, prosecutors and prisons will realize what this Government strives for and what the citizens want – a fair criminal law justice system. This is the way forward. Not what we have here in the provisions of this Bill!

There are several very dangerous themes running through this legislation which must give cause for major concern. I shall address them in due course. But I must state certain realities why we have the existing status quo in which acquittals by the jury in trials on indictment were never subject to appeals.

In a hundred and more years of the common law jurisprudence, time immemorial as we would say, the settled position, the bed-rock foundation of our criminal justice system has been that a jury’s verdict of acquittal represented the limit of the power of the State to impose punishment upon the citizen.

This was the perfect balance and counter-balance between the powers and resources of the State and the relative weaknesses of the ordinary subject within a democratic society.

Right up to recently, our Court of Appeal could only hear appeals from persons convicted. The prosecution had no right of redress, however strongly it held the view that an accused was wrongly acquitted.

Indeed, in 1978, by Court of Appeal Amendment Act 21 of 1978, only a DPP’s Reference to the Court of Appeal on a point of law following an acquittal on indictment was permitted. And in such a Reference nothing adverse could happen to the accused who was acquitted, pending the outcome of that Reference. He was a free man.

The Reference only illuminated the point of law for a better application by the Judges on Assizes. So the historic axis, that a jury’s verdict of acquittal remained in place, never shifted as a result of this 1978 Amendment.

The legitimate delicate balance between State and the individual was intact as regards the finality of the acquittal at a trial.

This DPP’s reference of 1978 could not be said to have impugned the supremacy of the jury or in any way limit the accused’s right to appeal if he was convicted.

This Bill before this House, however, Mr. Speaker, seeks a blatant erosion of jury supremacy! But more than that it affects other venerated legal safeguards which are the hallmark of our system of criminal law and criminal justice such as the presumption of innocence, such as the rule against double jeopardy, and even in my opinion the independence of Judges and hence the doctrine of separation of powers.

This Bill is frightening and in the words of a famous Barrister, John Cooper, (concerning an Amendment not too dissimilar put up by PM Blair’s Labour Administration in England in 2003)..…“Parliament by eroding this jury supremacy is effectively breaking that unwritten pact between the State and citizen that the State would never challenge the judgement of the people.”

As he pointed out, there must be a recognition of the reality “which should underpin any democratic criminal justice system, that the State is more powerful than the individual, that the criminal law, from summary to appellate justice, should recognize that imbalance and that if the State with all those powers transgresses to such a serious degree, then the criminal law will intervene on behalf of the weaker party.”

It is this reasoning which grounds why certain rights are given to accused persons and duties obligated to the State.

The Amendment in England in 2003 was duly passed because in England Parliament is supreme. That is the constitutional principle which governs England.

We have the Supremacy of the Constitution and in various provisions of our written constitution sacrosanct principles like the rule against double jeopardy, the presumption of innocence, separation of powers are all explicitly, if not implicitly, enshrined therein.

I want also to mention what we all learn at Law School about juries and their importance. Juries, as we know, and those over there should know from the Arnold Rampersaud trials, is that serious stumbling block which every Government hates when such Governments begin to act dictatorially – elected or unelected. It is that juries are a bulwark of liberty.

Lord Devlin in his classic book “Trial by Jury” made a comment therein that must resonate resoundingly in Guyana now, and which gives a guide to unveiling some sinister purpose behind this Bill.

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.”

This Bill seeks to do away with that particular constitutional balance between a puny citizen and a powerful State; it seeks to out that lamp which shows that freedom lives!

And all because of some unpalatable outcomes at the Assizes over the years! To walk away from this balance, and to replace it with the provisions of this Bill is a monumental mis-step.

This Government by its nature, and its exhibition and public expression here of its nature, feels that it knows best. However, it knows not what it is playing with!

How do the Bill’s provisions breach some of the fundamental doctrines? An illustration comes very readily at hand. An accused is charged with any one of the offences mentioned in 34 C (5), say murder.

The main evidence is a confession statement as is so peculiar here in Guyana. As is normally the case, this confession is objected to at the trial.

The Judge conducts a voire dire and rules that the confession is involuntarily obtained. He throws the confession statement out. A no-case submission is made by Defence Counsel.

It is upheld and the Judge directs that the jury brings in a not guilty verdict. The DPP will now, unlike before, have the right to appeal the Judge’s decision to exclude that confession.

This is what Clause 34 B (1) (a) (iii) is saying. The Judge’s discretion in holding evidence inadmissible is now appealable, at the behest of the DPP.

It is true that before only the Judge’s discretion to hold evidence admissible could have been questioned on appeal by a convicted appellant. Now this whole balance is being shifted.

But more than that, the accused has to remain in the lockups pending the determination of this appeal by our C.A. Moreover, that may not be the end of the wait because if the C.A. rules that the DPP’s appeal was unmeritorious, the DPP as of right can appeal to the C.C.J.

In similar terms, even if the Judge in the said case had ruled admissible the confession. And the matter is sent to the jury and the jury comes out with a not guilty verdict which presently would entitle the accused to go free, the DPP has powers to hold the accused in the lockups – (although a jury has acquitted him, mind you) – and tell the accused: “Wait there till the C.C.J ratifies the Judge’s summation because I did not like how the Judge summed up.”

Worse than that, if the Judge’s summation is found wanting by the C.C.J, say 5-6 years after the acquittal, the poor accused has to go back and face a brand new trial before another jury and Judge! Will this not mean a contravention of the right to a trial within a reasonable time?

Clause 34 B (1) expressly is getting at Judge’s whose rulings at trials the DPP does not like. These rulings in a large measure will depend on foundation facts led by the Prosecution and tested by cross-examination.

To want to appeal a Judge’s discretion to exclude is tantamount to the State pouring scorn over its own Judges in it pursuit of a conviction at a trial.

It smacks definitely of an erosion of the independence of a Judge’s adjudication in the criminal justice system, which as I have said, has this preferential balance in favour of the accused, in view of the power of the State and weakness of the citizen.

Now if it is the Judges that the Government is getting at, then better equip them. And ensure better appointments. Don’t damage our well-known criminal justice architecture! Don’t shift this longstanding balance.

Moreover, the double jeopardy rule as I know it will be encroached upon. When a jury finds a citizen not guilty after a Judge’s summation and a jury deliberation, then that should be the end of the matter.

To devise an appellate procedure which will now realise a second trial after a first acquittal is but an abolition of this double jeopardy rule. I needn’t go further and say that the presumption of innocence is also flung through the door.

Now it may be argued that the DPP may not abuse her right of appeal. It will only be sparingly used. Such an expectation must be unacceptable.

This power in the hands of the DPP, who in the constitutional construct as we know it is a member of the Executive branch of Government, can be exercised to the detriment of accused persons.

The manifestation will be an elongated period in prison, or the Sword of Damocles hanging over your head if lucky to be put on bail, as the finality of the process is being determined by inordinate appeals. This can constitute oppressiveness if not downright torture.

The effects, need I say, will be massive backlog and more frustration in the Court system. Policemen and witnesses will become frustrated having to duplicate their testimony in another trial. All of this will undermine an already sorry system.

This Bill must not be supported! Neither here in this National Assembly nor in any Select Committee stage. The AFC will only support its total withdrawal!