CLARIFICATION SPEECH ON TRIALS WITHOUT A JURY 2010 REPEAL BILL 2013

BY

THE HONOURABLE RHONDALEE BRAITHWAITE-KNOWLES OBE,

ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLAND

MADE AT

HOUSE OF ASSEMBLY

GRAND TURK

TURKS AND CAICOS ISLANDS

December 2014

 

 

Trial Without A Jury Ordinance 2010 (Repeal) Bill 2014

Unconstitutionality

Mister Speaker, at the second reading of this Bill the Government’s Appointed Member confirmed that the intention of the Bill is to be retrospective with the effect of rendering nugatory or of no effect, the decisions taken by the Supreme Court and the Court of Appeal in order a trial without a jury and upholding that decision in the current trial of former Ministers and others which were considered under the TWAJO.

On that occasion, I advised that the Bill breaches the Constitution in that it undermines the independence of the judiciary and ignores the rule of law.

Standing Orders

9. The Standing Orders of the House of Assembly … shall be read and construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution.

Statement of Governance Principles

28(4) In exercising their functions, all organs of government in the Islands have a duty to give effect to the Statement of Governance Principles for the time being in effect.

The Statement of Governance Principles issued on 22nd day of April 2013 provides as follows –

“4. All decisions of government, whether by Ministers, elected representatives or public officials, shall be lawful, rational, proportionate and procedurally fair.”

“13. The Government shall at all times respect the rule of law, the independence of the judiciary and the impartial administration of justice.”

Independence of the judiciary

83.—(1) The judges and magistrates appointed to preside or sit in any court of the Turks and Caicos Islands shall exercise their judicial functions independently from the legislative and executive branches of government.

(2) The Legislature and the Cabinet shall uphold the rule of law and judicial independence,….

Conflict of Interest

Mister Speaker, I wish to also raise a concern about conflicts of interest which I believe exist in respect of members of this Honourable House who are related to defendants who stand to benefit from the proposals now before the House.  Those conflicts arise due to close family relations or associations which are well known.  Mister Speaker, in accordance with the Code of Conduct for Persons in Public Life, those members should declare their conflicts and take the necessary steps to mitigate the apparent or actual conflicts in accordance with guidance issued by the Integrity Commission.

Repeal

Mister Speaker, the repeal of the Trials Without a Jury Ordinance 2010 would result in the repeal of the entire provision permitting an application for a trial without a jury in the Islands.

Fair Hearing

S.6(1) of the Constitution provides that “If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

Section 6 closely follows the provision of the European Convention on Human Rights.

Mister Speaker, Harrison J in his recent decision in the SIPT trial recognized that trial by jury is "undoubtedly the tried and tested means of achieving fairness in serious criminal trials" he recognized that this is subject to the proviso "unless its efficacy is likely to be undermined" and "other means may also be employed to achieve fairness".   The 2010 Ordinance provides the only other prescribed means to achieve fairness.

The Court's decision on this issue was also assisted by consideration of a 1985 article by  Sir John Spry, the former President of the Court of Appeal in Gibraltar and Chief Justice of several former British Overseas Territories entitled "Problems of Jury Trials in Small Jurisdictions". ([1985] Commonwealth Secretariat Legal Library).  That decision was bolstered by a 29^th August 2014 article “Twelve clueless men: A drive to abolish jury trials” in the Economist Magazine, written by Trinidad and Tobago's Chief Justice, Ivor Archie in the Economist.

In that article, the T&T Chief Justice says that “we simply cannot carry on the way we are going,”  The article goes on to say that “In small countries with a lively gossip network and active media, it is hard to find unbiased jurors, or to hide them from intimidation by violent gangsters.”  That article also refers favourably to the decision to enact the TWAJO in the TCI in 2010.

 An examination of the position in other countries – including England and Wales ("the seat of the common law jurisdiction") – in which trial by jury is a central feature of the criminal justice system reveals that, in appropriate circumstances, a court may nevertheless proceed to trial by judge without a jury since "the ultimate objective is to ensure each defendant a fair trial".

The legal framework

Section 3 of TWJAO 2010 applies where a defendant in any criminal matter is to be tried on Information.

Sections 4(1) and (2) of TWAJO provides (as relevant):

(1) Notwithstanding anything to the contrary in any law, a judge may order that a trial be conducted without a jury if he is satisfied that the interests of justice so require;

(2) An order under subsection (1) may be made on the application of any party to the trial or by the judge of his own volition.

Section 4(3) of TWAJO provides the factors for a Court to consider in reaching the decision as to whether to order trial by jury alone:

(3) in making a determination as to whether the interests of justice require that the trial be conducted without a jury, the judge shall have regard to all the circumstances prevailing, including any or all of the following:

(a) The nature of the charges;

(b) The complexity of the issues or matter to be determined, and any steps which might reasonably be taken to reduce the complexity of the trial;

(c) The length of the trial and any steps which might reasonably be taken to reduce the length of the trial;

(d) The likelihood that, if a jury were selected, pre-trial publicity may influence its decision; or

(e) if there is any information tending to suggest that a jury tampering may arise.

Section 5 of TWAJO provides a time limit for filing an application after committal of the defendant and for a party opposing to application to file written reasons for opposing such an application.

Principle of trial without jury

Mister Speaker, as a result of the change in the Constitution in 2009, there is no fundamental right to trial by jury in the TCI.  Accordingly section 3(1) of the Criminal Procedure Ordinance which together mandated in every criminal case on indictment, a trial before a judge and a jury, is no longer the law.

Accordingly the opening words of section 4(1) of TWAJO states the current law by making explicit that a judge has power to order non-jury trial "notwithstanding anything to contrary in any law…"

Mister Speaker, it is also important to note that in R (Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1039 (Admin) the Court of Appeal (Civil Division) in England and Wales (2 On appeal from the Administrative Court [2009] EWHC 1039 Admin) upheld the suspension of the right to trial by jury as lawful by Order in Council following the recommendation by the Commission of Inquiry.

It follows that any analysis of the question of whether it is right to order non-jury trial must proceed from the starting point that no abridgment of a constitutional right is involved, and that the enactment of TWAJO demonstrates an acknowledgment that it is considered that in certain cases, where the interests of justice require it, a court may order trial without jury notwithstanding a defendant's contrary views on the matter.

The Right to a Fair Trial

 The overriding concern for the Court in any case, is to ensure a fair trial and it is important, in that context, to recognise fairness as to both defence and prosecution.  Just as it would be wholly wrong for a defendant to be convicted by a jury in respect of which "a fair minded and informed observer, having considered the given facts, would conclude that there was a real possibility of bias against the defendant(s)"(3 Porter v McGill [2001] UKHL 67) so it would also be wholly wrong for a defendant to escape conviction of very serious criminal offences because the jury panel's pre-conceived bias was in favour of him or her.

An acquittal or conviction entered against any defendant by a jury would not be underpinned by any reasons, since a jury is not required to provide any. Mister Speaker, any Court would inevitably be uneasy about the safety of any verdict returned in certain cases in the highly politicised atmosphere of these Islands where examination of the rationale for the verdict cannot be scrutinised. Such unease would be shared by the parties to the proceedings as well as those in and outside of the Courtroom observing the proceedings. By contrast a reasoned judgment by a judge would provide the basis for a verdict in which all parties and observers could then have full confidence.

You will appreciate that the pool of potential jurors for any trial would be drawn from approximately 6,000 Belongers and then only from Providenciales or Grand Turk.  Mister Speaker, in some highly publicized cases or cases involving persons who are highly influential the chance of being able to discover any potential juror who had not been affected (positively or adversely) by matters, which have formed the basis of the investigations is remote in the extreme.

Mister Speaker (as posited by the Chief Justice of Trinidad and Tobago), any directions to a jury, no matter how carefully crafted by the Court would be insufficient to cure the deeply entrenched prejudice either for or against the defendants in the minds of a jury panel.

In addition, the concerns of intimidation, which are apparent amongst members of the community in respect of certain cases would inevitably operate and act – consciously or unconsciously – on the minds of potential jurors. Such issues would further expose the trial process and any verdict returned by a jury to the risk of contamination from it.

Options which could be taken to protect the interests of the parties in the context of jury trial that might be adopted in a larger jurisdiction, such as moving the trial to a neutral venue, are simply not available in these Islands. The only available mechanism to ensure the protection of the integrity of the decision making process by the tribunal of fact in these circumstances is to make an order for non-jury trial under the TWAJO.

The experience of other jurisdictions

 Provisions which abridge a defendant's constitutional or fundamental right to trial by jury and/or permit trial by judge alone in respect of serious/indictable only offences exist in a number of other jurisdictions.

The Caribbean

Jamaica

 Jury trial in respect of certain serious indictable offences was removed by the Gun Court Act 1974, which provided that all non-capital 'firearm offences' may be tried by a Judge or Magistrate without a jury. The Jamaican Court of Appeals in R v Stone (1977) 25 WIR 458 dismissed a challenge to the constitutionality of the appellant's conviction. The appellant argued that trial by jury was a fundamental and constitutional right guaranteed by tradition in English common law. The Court rejected this argument. The Constitution of 1962, adopted by Jamaica upon independence, guaranteed certain rights to criminal defendants. It omitted specific reference to a right to trial by jury. Accordingly trial by jury trials was – in the absence a specific provision – neither, expressly or impliedly entrenched in the Constitution.

Belize

 The Belize Constitution does not contain the right to jury trial but the Indictable Procedure Act CAP 96 (section 65) provides that a trial on indictment (information) shall be had by and before a judge of the court and a jury.

By recent enactment of the Indictable Procedure (Amendment) Act 2011 the right to jury trial is abolished for Murder and related offences. In relation to other offences to be tried on indictment the prosecution have the right to apply for trial by Judge alone provided that the Court is "satisfied" of one of a number of issues relating to jury tampering, fear of witnesses, gang type allegations or if "the complexity of the trial or the length of the trial (or both) is likely to make the trial so burdensome to the jury that the interests of justice require that the trial should be conducted without a jury".

In addition the defence may apply if concerned about pre-trial publicity.

Other Commonwealth Countries and the United Kingdom

New Zealand

The right to trial by jury in New Zealand is enshrined in section 24(e) of the Bill of Rights Act 1990 as well as by section 361A of the Crimes Act 1961.

However, sections 361B-D of the Crimes Act provides for trial without jury in respect of indictable matters other than those where the maximum sentence is imprisonment for life or imprisonment for a term of 14 years or more.

A defendant may apply of his own motion (section 361B and section 361C) for trial without jury. If the judge concludes that it is in 'the interests of justice', trial without jury shall be ordered.

By virtue of section 361D (2) and (3) a judge may order trial without jury in cases where reasonable procedural orders and other reasonable arrangements have been made but the duration of the trial is still likely to exceed 20 days and must be "satisfied" that in the circumstances of the case the accused person's right to trial by jury is "outweighed by the likelihood that potential jurors will not be able to perform their duties effectively".

Section 361E provides for a power to order non-jury trial in all offences triable on indictment where there are 'reasonable grounds to believe' that "intimidation of any person or persons who may be selected as a juror or jurors has occurred, is occurring, or may occur" and "that the effects of the intimidation can only be avoided effectively only by making an order [for non-jury trial]".

Provisions permitting a criminal trial without a jury exist in New South Wales and Western Australia, Northern Ireland and England and Wales

The UK case of Twomey (R v Twomey and others [2011] EWCA), the Court of Appeal observed that “it therefore does not follow from the hallowed principle of trial by jury that trial by judge alone, when ordered, would be unfair or improperly prejudicial to the defendant.  The trial would take place before an independent tribunal and, as it seems to us, for the purposes of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, it is irrelevant whether the tribunal is judge and jury or judge alone."

In dismissing the appeal, the Court (Lord Judge CJ, Rafferty and Roderick Evans J.J.) observed (at paragraph 5):

"Notwithstanding that trial by jury has been forfeited, the requirement that trial by judge alone should be fair is undiminished. All that has changed is the constitution of the tribunal. There is nothing in the common law, or in any of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms which suggests that trial by judge alone must, of itself, be deemed to be unfair, or that where an order for trial by judge alone is made, the subsequent trial offends the principle that every defendant facing any criminal charge is entitled to a fair trial. And it has not been suggested in argument that an order for trial by judge alone is or should be deemed to be an unfair trial. The fairness of any trial by judge alone is, of course, subject to review in this court, and if on examination it appears that the trial judge had acted unfairly, or in breach of the ordinary rules which govern judicial conduct, this court would have no hesitation in quashing any subsequent conviction."

In conclusion, Mister Speaker, in the light of the review of common law jurisdictions relating to judge alone trials that:

1. The right to trial by jury is undoubtedly an important one, but that legislative inroads into it are not uncommon and constitutionally sound;

1. Where the legislature has made inroads into the absolute right, it will not be taken away from a defendant without scrutiny by the court.

Analysis of the circumstances prevailing in the TCI at this time

Section 4(3) '…all the circumstances prevailing'

 In 1986 Sir Louis Blom-Cooper QC conducted a Commission of Inquiry in the TCI and observed in his Report "Report into Allegations of Arson of a Public Building, Corruption and Related Matters" (1986):

"Almost everyone in the Islands identifies himself with one or other of the political parties. With such a manifest commitment to party politics, it would be impossible to achieve impartiality in a jury empanelled from among the qualified jurors in the Turks and Caicos Islands"

Sir Louis Blom-Cooper's observations remain true over 20 years later. The difficulties of conducting a criminal trial with a jury was considered in the Commission of Inquiry that led to the current criminal allegations. In his report Sir Robin Auld ("Turks and Caicos Islands Commission of Inquiry 2008--‐‑2009 into possible corruption or other serious dishonesty in relation to past and present elected members of the Legislature in recent years") foreshadowed the problem in

 Recommendation 51:

"Provision should be made for criminal and civil trial by judge alone, at the trial judge's direction in any case in which he considers no fair or effective trial could take place with a jury, and the judge's direction should be final."

Sir Robin further observed (paragraphs 5.26 and 5.27 of the report):

"I have in mind a provision for the introduction of a…special procedure of trial by judge alone for cases where trial with a jury would risk impairment of the administration of justice. This would cover, but not necessarily be confined to, cases of possible corruption and/or other serious dishonesty giving rise to this Inquiry…. See, for example, the provisions in England & Wales under sections 438 and 44 of Criminal Justice Act 2003 for trial by judge alone in cases respectively of serious and complex fraud and where there is a danger of jury tampering… See also the wide--‐‑spread use of bench trials (i.e. trial without jury at the option of the defendant) in common law jurisdictions…

Such a course would involve the removal of the present right to trial by jury contained in section 6(g) of the present TCI Constitution, for suspension of which the 2009 Constitution Order provides but ideally leaving it for decision by the trial judge on a case by case basis. But trial by jury is not a pre--‐‑condition of the fair trial requirement of Article 6 of the ECHR, which section 6(g) reproduces in substance. Trial without jury is also a feature of a number of jurisdictions throughout the World, including India and Holland. If, as is clearly the case, it is Article 6 compliant in the many jurisdictions that permit trial of even the most serious offence without jury, it is not such a big step to take where national and cultural conditions are such, as here, that no fair or effective trial could take place with a jury. There are, in my view, at least seven reasons why such a step should be taken:

1) the stance taken by all attorneys acting for Ministers and/or other Members of the House of Assembly and others in the Inquiry was that their respective clients could not possibly be given a fair hearing by a jury, given the wide adverse publicity to allegations against them before, during and as a result of the work of the Commission; all or most of the attorneys, expressed with some cogency, in my view, the high likelihood that any trial judge, faced with an application for a stay of the prosecution on account of such prejudice, would stay it;

2) the contrary consideration, if any prosecution were to survive such a stay application, is that, in this small community of close family political and commercial affiliations, it would, in the event, be well nigh impossible to secure convictions of politicians by jury trial, where the panel is of only seven jurors entitled to bring in majority verdicts by as few as five, and where, for so many potential jurors in this jurisdiction, much turns on commitment to party politics and local and family allegiances;

3) the clear risk, in such circumstances, of jury–tampering;

4) the potential complexity of allegations of corruption or other serious dishonesty of the sort canvassed in the Inquiry – taxing for any jury panel, whether in the TCI or any jurisdiction --‐‑ a strong contributor to the reasoning of Lord Roskill's Committee on Fraud Trials recommending trial of serious and complex fraud without juries;

5) the length and public and private cost of any likely prosecutions if tried with a jury – in some cases of some months – and the concomitant intrusion, burden on the lives and distress, to all trial participants;

6) the fragility of long and complex jury trials – see e.g. the collapse of the Jubilee Line trial at the Central Criminal Court after many months at a reported cost to the public purse of some £60 million; and

7) the strong public interest in what has become a state of national emergency for those responsible to be brought swiftly to justice and, if found guilty, made to expiate their crimes – an outcome, which, in my view, will be impossible if it is attempted in the Territory by way of trial by jury."

The recognition and acceptance of the issues highlighted by Sir Robin appears to have been the main determining factor in the enactment of the TWAJO. It is to be observed that there is a certain irony in the fact that some of those who may now seek to argue in favour of trial by jury were those who argued 'cogently' and apparently persuasively against it before the Commission of Inquiry.

 

Mr. Speaker, thank you for the opportunity to clarify these matters.

 

Hon. Rhondalee Braithwaite Knowles

Attorney General