Shifting to Judge-only trials a complex issue – Nandlall

…not an immediate answer to a problem – Bar Association
…says wants to flag it for future action

The Guyana Bar Association (GBA) is not in support of the Judiciary recommencing jury trials next week Tuesday, October 6, 2020, in light of the increasing COVID-19 deaths and cases in Guyana.

While the GBA has been engaging with the Judiciary on forging the way forward, it has called on Government to seriously consider passing legislation that will, among other things, facilitate the implementation of Judge-alone trials and the reduction of the number of jurors required for trials at the criminal assizes to ensure that justice is not delayed and dispensed swiftly in a safe manner.
However, Attorney General and Legal Affairs Minister Anil Nandlall said that this is not a simplistic issue as it may appear. In fact, Nandlall pointed out that jury trials have long been a staple of the common law and the cornerstone of the criminal justice system. He explained that the right to an accused person to a jury trial is a very sacrosanct right that has survived for centuries.
According to Nandlall, “It is predicated upon the right of an accused person to be tried by his peers and therefore it is not a matter that can be taken lightly.” He noted that in order to shift to Judge-alone trials, legislative changes will have to be done because the law currently mandates that certain types of offences can only be tried before a Judge and jury at the criminal assizes.

“So that law will have to be amended. But consultations would be necessary because in some quarters this move may be opposed vehemently especially by criminal lawyers as well as human rights, and rights-based organisations. So, one needs to tread very carefully on this matter as it is considered fundamental to the criminal justice system,” Nandlall noted.

Future action
Meanwhile, Bar Association President Attorney-at-Law Teni Housty pointed out that the presence of the COVID-19 pandemic has forced a change in the way the justice system operates, not only in Guyana but also in the wider Caribbean. He said that countries like Trinidad and Tobago and Jamaica have passed laws which have seen a shift from jury to Judge-alone trials.
While the Bar Association is pushing for these measures to be given urgent attention in Parliament, Housty was keen to point out that they were never considered to be an immediate answer to a problem. “We want to flag it for future action and the issue is a real one now. We can start the process, we can start the discussion, but it is not a quick fix,” the Bar Association President pointed out.
Speaking specifically on the issue of Judge-alone trials, like Nandlall, Housty noted that it requires legislative amendment and a comprehensive process of the relevant review of laws and consultations as wide as possible. He added that a framework has to be outlined and that Guyana can take note of the approaches and the implementation of laws in that regard in Trinidad and Tobago and Jamaica.
“It [Judge-alone trial] is an option that is given to an accused person. So, an optional entitlement would be a part of the broad discussion. The question would be whether the time is right now to start a process. You have to consider constitutional issues, fundamental right issues. You have to look at it from a personnel perspective in the context of how many persons are awaiting jury trials, how many of the persons awaiting jury trials would opt for Judge-alone trials. So, you would also need to get the empirical data from persons who are awaiting jury trials.”
“It is just adding an option in the delivery of justice. I do not think Judge-alone trial should be mandatory,” he said. Against this backdrop, he further said that the fundamental right of the accused person remains sacrosanct, while adding that Guyana has to look for opportunities to improve the administration of justice in a long term, sustainable and safe manner given that the world is in the midst of a pandemic.
Last week, the GBA in a press statement said that while Guyana was paralysed by a prolonged five-month election process concurrently with the pandemic, other jurisdictions which had the benefit of an operational Parliament were able to pass laws and institute procedures that adapt to keep the legal process moving forward while protecting and balancing the rights of all citizens.
Apart from Judge-alone trials and reduction in the number of jurors for criminal trials, the Bar Association said that some countries have made amendments to the considerations and conditions of bail to reduce the number of persons in custody; plea deals; virtual hearings and procurement of the equipment therefor; e-filing and other electronic facilities.
GBA pointed out that while it recognises the efforts of the Judiciary to cope with the changes brought about by the pandemic, Guyana now has a functioning Parliament and urgent attention should be given to these matters so that the rights of citizens and the public health can be secured. Moreover, it added that the recently reported number of positive COVID-19 cases of inmates is alarming and also a cause of concern for the resumption of jury trials at this time.
In fact, GBA underscored, “It is the duty of the State to provide adequate facilities for persons in their custody. Delays in trials of accused persons have plagued Guyana for many years due to many factors. We are now in the extraordinary time of a pandemic which has undoubtedly changed our lives and manner of operation. As we have all now undoubtedly learnt, we will be unable to do things the way we used to for quite some time. Alternative solutions must be found and employed out of a collective, consultative and coherent process.”

Not absolute
It said that while it is conscious of the constitutional right of an accused person to a fair hearing within a reasonable time, this right is not absolute and must be balanced against other considerations such as public health and other enshrined rights of citizens. “One right cannot outweigh the other,” GBA noted.
The Bar Association pointed out that given the high COVID-19 infection rate in Jamaica and Trinidad and Tobago, jury trials have not yet recommended. As a matter of fact, it stressed that Guyana’s reported rate is higher than Trinidad and Tobago. In light of the reported rising cases and deaths in Guyana, particularly over to the past month, the GBA expressed grave concern and reservation for the resumption of jury trials.
It noted that the resumption of jury trials has been led by medical science, and that meaningful consultation has become the hallmark of good administration in a modern society, as now recognised in many decided cases.
According to the GBA, the decision to resume jury trials affects not only the Bench, Bar and accused, but also the public at large who are compelled by judicial command to appear either as jurors or witnesses, under the threat of penal sanction if they fail to do so.