The erosion of Jury Supremacy

Apr 11, 2010 AFC Column, Features / Columnists

By Khemraj Ramjattan
Chairman AFC

[A number of commentators have unjustifiably been critical of me, and by extension the AFC, in not having been more scathing in our criticisms of the very repugnant Court of Appeal (Amendment) Bill of 2008. I attempted to clear the air by informing them that both myself and Mr. Trotman did make substantial contributions in the Assembly denouncing the provisions thereof which were not given a deserving publicity. Recently, too, the Attorney General fired off with his usual venom that we have an ulterior motive in not supporting the Bill. The below constitute a much abridged version of my speech given in the National Assembly since 24th July 2008. I hope this makes widely public the reasoning behind the AFC’s position on the Bill.]

Mr. Speaker, this Government feels that its only obligation is to legislate, because that mandate has been granted to it, and to so legislate as to further fortify the position of the State.
It fails to appreciate that the other obligation it has is to pass laws which must improve the lives and the 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 DPP to the Court of Appeal and thereafter as of right to the Caribbean Court of Justice, will not improve the lives of lots of citizens.
The lot of the accused will be made more horrifying and horrible! So, too, the lot of all those involved in the trial process…. the witnesses, the police, the jury, the Judge, and even the entire system, because of a probable inundation of appeals. This is readily foreseeable.
So why bring this Amendment? I want to suggest it is utterly out of a massive ignorance as to the reason why the law is as it is presently, that has caused them to bring this Amendment.
This Government will argue that since the accused has the right to appeal his conviction, then why shouldn’t the State have the right to appeal the acquittal of the accused.
The acquittal rates these days are obviously soaring but that is not due to the fact that the State does not have a right of appeal. And I warn that now that the State will be given that right of appeal, it is foolhardy to conclude that there will be more convictions and less acquittals.
More convictions will only happen when a) there is an improved quality of the investigation of crime; and, b) there is a high quality of prosecution at the trial thereafter.
Both these phases require a sustained effort at training the personnel, keeping them abreast with the advances of technologies to assist in detection, and having advocates at the trial process who, apart from articulating in a manner to convince a jury, must also be sharp enough to counter the stumbling blocks that Defence Counsel may legitimately mount.
Now, we have the existing status quo in which acquittals by the jury was never subject to appeal. Why did we have from time immemorial that status quo?
In a hundred and more years of the common law jurisprudence, the settled situation, the bedrock 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 a citizen.
When the jury said: “You are acquitted”… that was the limit! No matter what wrong or error the Prosecutors and the State might have felt occurred during the course of that trial, those words …”Not Guilty” one cannot go behind! It was the limit of punishment.
This was the perfect balance between the powers and resources of the State and the relative weaknesses of the individual within a democratic State. It has always been so in Guyana and it should remain so! Right up to this point, our Appellate Courts could only hear appeals from persons convicted.
The Prosecution has no redress, however, strongly it held a view that an accused was wrongly acquitted.
Indeed in 1978, as the Honourable Attorney General spoke about, by virtue of the Court Appeal (Amendment) Act 21/1978, only a 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 so acquitted. He goes home, he is a free man.
The reference, upon its determination, only illuminated the point of law for a better application by the Judges in Assizes for future.
So the DPP’s Reference of 1978 could not be said to have impugned the supremacy of the jury’s verdict or in any way limited the accused’s right of appeal if he was convicted. However, this Bill seeks a blatant erosion of that jury supremacy!
But more than that… it affects other venerated legal concepts, which are the hallmark of our system of criminal law and criminal justice such as:
• The presumption of innocence;
• The rule against double jeopardy and I will have a word to say about the cases my learned, senior and Attorney General mentioned; and, even in my opinion
• The independence of Judges and hence the doctrine of separation of powers.
This Bill is “frightening”, to use the words of John Cooper, QC concerning a not too dissimilar Amendment that the Blair administration in England sought. He said then in the NEW LAW JOURNAL of 18 January 2008: “Parliament, by eroding this Jury Supremacy is effectively breaking that unwritten pact between the State and the citizen that the State would never challenge the judgement of the people”. And later: “What abuse of the process gives to the Criminal Law is a recognition, which should underpin any democratic criminal justice system, and that is, that the State is more powerful than the individual; that the criminal law from Summary to Appellate Justice should recognise this imbalance and that if the State with all those power transgresses to such a serious degree, then the criminal law will intervene on behalf of the weaker party.”
The Criminal Law has always intervened on behalf of the weaker party. We grew up on the legal circuit hearing that it is better to have ten guilty men go free than one innocent man found guilty.
Mr Speaker, though the Amendment in England, criticized by Mr Cooper QC, was duly passed, I want to state this: that in England, there is the Supremacy of Parliament. In Guyana, that constitutional doctrine does not govern us. We have the Supremacy of the Constitution.
In various provisions of our written Constitution, sacrosanct principles like the rule against double jeopardy, presumption of innocence, and separation of powers are all explicitly, if not implicitly enshrined therein.Article 144 (5), states the double jeopardy provision. Similarly in Article 144 (2) it is quite clearly stated the presumption of innocence. And these are explicitly provided for.
I also want to mention what we all learnt at Law School about juries and their importance. Juries, as we know and I remember this… and I am certain those over there would remember this from the Arnold Rampersaud trials, is that serious stumbling block, which every Government hates when such Governments begin to act dictatorially, whether elected or un-elected.
What is it that we are taught at Law School? It is that juries are a bulwark of liberty. Lord Devlin in his classic TRIAL BY JURY made a comment therein that must resonate resoundingly in this National Assembly.
And which comment gives a guide to unveiling the sinister purpose behind this Bill. This is what it says… that comment of that great Law Lord: 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 that freedom lives”. Lord Devlin, Mr.Speaker.
This whittling away, this diminution of the value of the Supremacy of the Jury by virtue of what is being done here, in relation to acquittals, is but taking away that bulwark of our liberties!
That which we have here is but an outing of that lamp that shows that freedom lives!
This Bill seeks to do away with that particular constitutional balance between a puny citizen and the behemoth/leviathan State…all because of unpalatable outcomes at the Guyana’s Assizes in recent years. Unpalatable outcomes that come not because we do not have the right to appeal acquittals, but as I mentioned earlier because of the inefficiencies within the detection process, the collation of statements process, the prosecution process, and right up to the trial process.
To walk away from this balance that has been with us from time immemorial, and to replace it with provisions of this Bill, is a monumental misstep!
How do these 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 Section 34C (v) of this Bill, say, murder.
The main evidence is a confession statement, something that is very popular in that kind of trial these days and generally because of the attitude of policemen in oppressive circumstances and sometimes wholly out of torture.
As is normally the case, this confession will be objected to at the trial. The Judge conducts his voir dire and as a trier of fact, rules that the confession is involuntarily made and throws the statement out.
A no-case submission is made; the no-case submission is upheld and the judge then directs the jury to bring in a not-guilty verdict.
The DPP now, unlike before, has the power to appeal the Judge’s decision to exclude the confession.
This does not only apply to confessions, but to dying declarations, res jestae, and a whole host of evidence – material evidence – which generally is sought to be produced by the Prosecution.
This is what Section 34B (1) (iii) is saying….. the Judges’ discretion now in holding inadmissible that bit of evidence can be questioned. Before, only the Judges’ discretion to hold admissible that evidence could have been questioned, when as a result of its admission it led to a conviction. This whole balance is now changed; the whole jurisprudential axis on which our criminal justice process rested has now been removed.
But more than that, what has happened now is that the accused has to remain in the lock ups pending the determination of this appeal ….right up to the CCJ! And then the cycle could be repeated and then it could be used for political purposes. This shift of the axis is going to be monumental madness in our Criminal Justice System.
All too visible is the double jeopardy rule as I know it, being encroached upon, too. A jury having found a citizen not-guilty after a Judge’s summation and a jury’s deliberation … that should be the end of the matter!
To wiggle out of it through an appellate procedure, which this Bill seeks to do, will now realise a second trial after a first acquittal.
This is but an abolition of this double jeopardy rule! I need not say, too, that the presumption of innocence is flung through the door!
This is tantamount to the State pouring scorn over its own Judges, who would have exercised their discretion, say, to exclude that confession statement or other material evidence.
This is but definitely an erosion of the independence of a Judge’s adjudication in the Criminal Justice System which has this preferential balance in favour of the accused. This constitutional balance is being shifted.
But, Mr Speaker, if judges are indeed not doing a proper job we shouldn’t re-arrange the regime of our criminal justice system.
If judges are not applying the law in relation to no-case submission; or, substantially misdirecting on a summation, then do not bring this draconian Bill to change the balance!
Have a continuing legal education for judges! Moreover, if we feel that the judges are still not doing a good job, ensure better appointments. Do not shift this long-standing balance!
This Bill must not be supported here nor in the Select Committee. It is unconstitutional!