Jury system under the microscope: Should we abolish jury trials? |02 April 2015

The Seychelles Judiciary has inherited the jury system as part of our colonial tradition, and so the practice of a person accused of murder tried by a nine-member jury representing his/her peers has existed here since the existence of the law itself.

The practice finds its origins as far back as the 8th century BC in Ancient Greece, where the great philosopher Socrates was in 399 BC convicted by a 50-member jury for “denying the gods and corrupting the young through his teachings” and subsequently sentenced to death by poisoning.
 
The system later travelled through Europe. In England for example, it was enshrined in the ‘Magna Carta’ approved by King John on June 15, 1215. In a country which has to date remained without a constitution, the Magna Carta (Latin for ‘the Great Charter’) and also called ‘Magna Carta Libertatum’ or ‘the Great Charter of the Liberties’, is considered as the Supreme Legislation. Among other rights, it promised right and access to justice.

The political myth of the Magna Carta and its protection of personal liberties persisted well into the 19th century. It influenced the formation of the American Constitution in 1789, which became the supreme law of the land in the new Republic of the United States. Even today, the Magna Carta still forms an important symbol of liberty, often cited by politicians and campaigners, and is held in great respect by the British and American legal communities. Lord Denning has described it as "the greatest constitutional document of all times – the foundation of the freedom of the individual against arbitrary authority”.

In France, the jury system was introduced at the time of the inquisition dating back to the middle ages. In Italy, Pope Innocent IV in 1254 confirmed the obligation of its application “because for a serious accusation, the Court has to proceed with utmost precaution”. In difficult cases, a jury’s ruling was then compulsory.

In Seychelles, the jury system had since colonial times been widely accepted as a means of delivering justice. So as in many other Commonwealth countries, though it has since been abolished in some of them and elsewhere where it existed before. One example is South Africa as shown by the recent Oscar Pistorius trial whereby the athlete was tried by a single judge.

Following the acquittal of two accused in the last two subsequent murder cases before the Supreme Court, the jury system is being put under the microscope. The question asked in the judicial circle and also among the general public is “should we continue with jury trials?”

The question was recently debated at the Palais de Justice during a forum organised by the Judicial College of Seychelles. The amphitheatre packed with an audience which included judges, members of the National Assembly (MNAs), lawyers, police officers, ex-jurors as well as members of the general public showed how the topic is of particular interest.

Launching the debate, acting Chief Justice Durai Karunakaran was quick to show that he is one of the leading advocates in favour of the abolition of jury trials.

He said the system which was designed to suit 11th century anglo saxon society is now questioned by modern society where it seems to have become obsolete. He added that as social necessities and opinion are always in advance of law, we should close the gap between law and society.

“There has always been skepticism from the general public on the issue. The jury system has already been done away with in many Commonwealth societies. Now the idea has come to the social surface in Seychelles. The debate cannot be held back. All the forces in the world are not as strong as an idea whose time has come. We should close the gap between social need and judicial laws. We should close the gap between law and society. Social necessities and opinion are always in advance of law. They come first and then law follows to rationalise them,” he said.

The acting Chief Justice concluded that the expected result is to achieve happiness for the majority of the population.

Justice Karunakaran’s position received the support of Attorney General (AG) Ronny Govinden who believes that the jury system is an “ancient trial system which has been on the statute books for many centuries”. He believes that for too long the Seychelles judiciary has been in a cocoon and has commented that it has been a bold and courageous initiative to organise the seminar which he hopes will help bring about change.

The AG cited what he has called “total jury fatigue” as one of his main arguments against the keeping of the judicial tradition. He feels that there is now a lack of interest in jury duties among the public and this is shown by the fact that people now find various excuses to refuse jury duties. He believes that this affects the trial as well as many other areas of judicial and economic life.

“There is a total apathy compared to long ago when it was a matter of pride and sense of duty for a juror,” the AG has said.

One other reason why Mr Govinden believes trials by jury should be abolished is lack of impartiality. He argues that all Seychellois are almost known to each other or are relatives to each other and the social or family connection leads to a sense of sympathy towards the accused.

“We support or condemn depending on our proximity to the accused. Sometimes the juror has taken his or her decision before even coming to Court,” the AG says.

He is equally of the view that jury tampering is also currently prejudicial to a fair verdict. As the jurors are not confined during the trial he says, they can discuss the case out of Court and this influences the final outcome. He adds that the jury seems to be above the law as compared to judges as it does not write judgments and is not entitled to give any reason for its decision. This practice he says deprives the accused of his/her constitutional right.

“Secret deliberations equal to deprivation of constitutional rights as an accused must attend to all deliberations pertaining to his/her case. Finally there may be no deliberations and we do not know,” the AG has insisted.

Finally, Seychelles’ chief prosecutor is of the opinion that in modern day and age, an accused is tried by the media even before going to court. This includes social media and by means of internet search engines especially Google which help forge an opinion from the information they give.
 
“This is not ethical and is a threat to the judicial system,” he says before concluding by saying: “the jury trial system has been tried, found guilty and convicted. We must move on. It should not be maintained just because it is part of our tradition. It is becoming more and more unworkable. Abolishing it is giving due power to the justice system”.

In spite that it is widely believed that the accused in the two recent murder cases would have been convicted if they had been accused of manslaughter or/and less serious crimes, Mr Govinden has maintained that the prosecution shall not revert to manslaughter or other charges just because a jury trial may be more challenging.

On this note, Court of Appeal Judge and former Attorney General Anthony Fernando seemed to disagree with his successor as he reminded that in the case of murder, death must be premeditated and non-accidental and that jurors have to decide the case according to the evidence presented in Court and not according to hearsay. He also rightly remarked that the Judge guides the jury according to the evidence.

As she pleaded for a more gender balanced jury in future murder cases, the ambassador for Women and Children’s Affairs Erna Athanasius clearly showed that she is in favour of the jury system.

“A community made up of one is different from a community made up of both. We are not yet gender blind when it comes to the justice system, we should. One question we should ask is should there be laws dictating the number of male and female jurors? […] A court is no better than a jury,” she said.

Ms Athanasius was joined by well-known lawyer Anthony Juliette who described the jury system as “a solid legal base”.

Like Judge Fernando and referring to the recent acquittals, he said a criminal case has to be judged on the basis of the evidence. He reminded that the evidence comes from the police, implying that the latter should do a better job and provide better evidence in court. He further remarked that the prosecution prefers filing for murder in spite of weaknesses in the case, even going to the extent of refusing a proposal from the accused to pleading guilty to manslaughter.

“They prefer to go for the overkill and they come out empty handed. The success rate will be higher if the prosecutorial discretion is more respected.”

Mr Juliette further argued that a jury is independent and understands the culture – thus the cases’ surrounding circumstances – more than a single judge. He further emphasised that this situation particularly applies to Seychelles where we employ foreign judges.

“A foreign judge will not understand a fracas in a lakanbiz (traditional bar). Nor do judges attend football matches,” he said.

Lawyer Juliette also rejected the argument that trial by jury should be abolished because Seychelles is a small country. He rather argued that the population and the country’s surface area have increased compared to a time when the system was not questioned.

“The argument that Seychelles is small cannot hold. In 1972 the population was 55, 000. In 2015 we are more than 90, 000. So we are not a small population and the country has also expanded territorial wise.”

His strongest argument in favour of maintaining the jury system was that from 1972 to 2015, 80% of murder cases have ended in convictions, thus showing the strength of the system.

“The jury must be maintained and has not become irrelevant as some people are saying. In 43 years there have been 80 murder cases with only 13 ending as acquittals. In 2015 it is only the first time that the prosecution has failed to secure a conviction in two cases in a row. We should not be wasting time here to talk about this. Prosecution has been disappointed by those losses. In spite of taking stock of those losses, we only want to get rid of the jury trial. We cannot change a fundamental law just because the prosecution has been disillusioned,” he said.

Mr Juliette went on to stress that we cannot say that society wants the change unless there is a survey or even referendum on the matter. He added that people in favour of the change should reconsider their position and come out with credible statistical facts.

“We cannot be hasty in our decision,” the lawyer concluded.

“The jury system is not a colonial throwback. It is the best system that works in respect of very serious cases such as murder and treason. Countries which have retained the system have done it because generally the public accepts jury verdicts. The police and the AG must really search why the last two cases have ended in acquittals. The problem is with the evidence and the prosecution. If the system has limitations, we have to relook at it, including at the qualifications of jurors and the capacity of the prosecution. We do not have to drop a system that practically the whole world has kept in one way or another. We do not have to abandon the system just because of recent prosecution failures. The problem is not with the jury but with the system,” one other lawyer has stressed.

Ultimately, may be the best lesson to retain is that there are several steps in a criminal trial: prosecution, defence and verdict. And the verdict can depend on any of these.  So the jury is not solely responsible for an unsatisfactory verdict.