Caribbean Legal System

The Jury

The Nature and Composition of the Jury

The jury system is an essential element of the democratic process. It attempts to secure fairness
in the justice system. Traditionally, the jury system of has been viewed as a cornerstone of
administration of justice under the common law tradition. However, the use of jury system is on
the decline. Today its use differs, depending on whether (a) it is a civil or criminal matter, and (b)
in criminal matters whether it is summary or an indictable offence.

The modern jury is composed of a maximum of twelve members. Typically, in murder

and treason, the jury consists of 12 members, while in other criminal trials, it may be nine. 1 In
civil matters the jury often consists of nine members. Before this century, the jury system was
widely believed to be one of the chief safeguards of right against abuse of the judicial powers.
Trial by jury was felt to be an essential and inviolable right, as a security blanket to ensure the
liberties of citizens as against the state. As noted by Lord Camden:

Trial by jury is indeed the foundation of our free constitution; take that away and the whole
fabric will soon moulder into dust.2

Therefore, the notion of a jury system as an essential feature of the democratic process
is not only contemporary one. Essentially, the jury’s purpose is to be the sole judges of facts. In
contemporary times we believe that, to be judges of fact, one must come to court ignorant of
the facts. Impartiality in adjudicating is therefore based on ignorance of the facts. This concept
of a juror, peculiar to modern minds is

‘…a body whose duty is to hearken to the evidence and return a verdict

accordingly, excluding from their minds, all that they have not heard in

1
See, eg, The Jury Act 1990 of Grenada, s 21
2
As quoted in Jackson, M, The Machinery of Justice in England, 7 th edn, 1997, Cambridge: CUP
 open court.3

Thus ideal for modern jury is complete obscurity. This means, if any juror has knowledge
for the facts, he must state this publicly. The need for impartiality is demonstrated in the case of
Howe v R.4 Here, one of the juror had been present at a previous conviction of the accused. This
was sufficient ground to establish bias.

The Special Jury

A part from the common jury, outline above, there is in some jurisdiction, such as Jamaica, what
is known as a ‘special jury’. This jury usually consists of person with special qualifications,
whether profession or trade, which relate to the matter being tried. The special jury may be
used at the discretion of the judge for certain important or complicated civil cases where it is
felt that specialized or technical knowledge on the part of jurors is essential for the efficient
dispensing of justice. In the cases of special jury system (see Jury Act of Jamaica s 24), strong
reason must be given before the court exercises its discretion. This was confirmed in the case of
Police Commissioner v Hinds.5 This is why it is perhaps seldom employed, although given the
complex matters involving finance, telecommunications and the like and given that judges may
not have such expertise, the need for it may have increased.

The Right to Trial by Jury

Despite the importance of jury trials to administration of justice and the democratic process,
there is no right to trial by jury in all cases. In the Caribbean, as elsewhere, trial by jury seems to
be diminishing in importance, at least for certain type offences. There are several reasons for
this decline. Two of the most important are the rapid growth in the volume of litigation and a
general appreciation that juries are both unpredictable and infallible.

3
Devlin, P (ser), Trial by Jury, 1956, London; Stevens, p 2.
4
(1972) 19 WIR 517.
5
(1956) 2 WIR 302, Barbados.
 In determining the availability of jury, the first question is if the matter is criminal or civil, if it is
criminal then, it must depend on whether it is summary or indictable offences.

Bahamas and Bermuda are the only two countries in the Commonwealth Caribbean which has
enshrined a constitutional right to trial by jury. In R v Stone,6 the Jamaican court of Appeal
disagreed that trial without a jury violated any constitutional right, as trial by jury was not
expressly or impliedly entrenched in any provisions of the Constitution. Jury trials have
undergone further scrutiny in the region. In Re Eric Dariem, A Juror,7 the appellant was
summoned for jury service in the circuit court of Jamaica. He asked to be excused on the ground
that his conscience did not permit him ‘to take part in judging a person’. He was refused
exemption on the basis that that was not a legitimate ground for exemption under the jury law.
He then contended that his objection fell within the provisions of the Constitution of Jamaica
designed to protect him in the enjoyment of his freedom of conscience, and should be upheld
on this ground.

The Supreme Court of Jamaica while conceding that the jury service may have been an
abrogation of such right it fell within the accepted limitation for derogation of human rights in
Jamaica, that is it was reasonably required in the interest of public order’ and ‘for the purpose
of protecting rights and freedom of others’. This is because trial by jury was an essential part of
the law administered in the circuit court of Jamaica. Paradoxically, however, while trial by jury
may not be a constitutional right it is sufficiently important to dislocate constitutional rights.

The election to summary trials

Even for indictable offences, there has been a growing tendency to allow an alternative to jury
trial. This is achieved by allowing certain indictable offences to be tried before inferior courts
and widening the jurisdiction of such courts by extending the number of offences to be tried
there, sometimes called ‘hybrid offences’. This method logically resulted in a diminution of jury
trials. The fact that non-jury trial attract a lighter sentence perhaps explaining the preference for

6
(1977)25 WIR 458
7
(1974) 22 WIR 324
the choice against jury trial in such situations. Yet, there are those, who will prefer to take their
‘chances’ with what they perceive as a sympathetic jury.

Challenges to the Jury

To attain the ideals of representativeness, objectivity and impartiality in the jury trials, there is a
process known as challenging the jury. In this process if it is believed that a particular juror is
biased in anyway, either through intimate knowledge of the circumstances of the case, or
prejudice, he may challenge and ask to step down if the challenge is found by the court to be
justified.

There are two types of challenges to the jury, ‘challenge for cause’ and ‘preemptory challenge’.
A reason for the challenge is not necessary when the right to preemptory challenge is being
exercised, but a good reason, such as suspicion of bias, must be advanced before one may
challenge or question a juror for a cause. A limited number of preemptory challenges are
permitted for each matter. The conditions for challenging jury selection are expressed under
statute.

A juror may also be challenged for cause. This is challenge without numerical restriction, on the
part of either the defence or the prosecution, alleging some good reason why the juror should
not be empanelled. Common reason are bias on grounds of knowledge of the defendant, some
other involve with the case, or prejudice such as race or pre-trial publicity.

Discharging the Jury

It is within the discretion of the jury to decide whether a juror’s misconduct, irregular behavior
or circumstances sufficiently prejudice the trial enough to discharge him. Every accused in the
commonwealth Caribbean has a right to a fair trial. Discharging jurors or juries who may
prejudice that trial is in keeping with this principle. Note also in many cases a judge may decide
that although an irregularity has occurred it is not serious enough to warrant a discharge, or,
further, a new trial. The case of Gibson v R8; here, after the commencement of a murder trial,
the court discover that, one of the jurors was the brother of the deceased. The juror was
immediately discharged and the trial heard by the remaining 11 jurors. On appeal the court
held, that a fundamental principle was raised, i.e. that justice must not only be done but must
be seen to be done. However, in this instance, the court did not find that the right to a fair trial
had been prejudiced. In Chaital v State,9 a juror was allegedly seen speaking, during the break.
The judge invited council to the chambers and conducted an inquiry into the matter. He decided
that the matter was not sufficiently credible. To raise the possibility of a miscarriage of justice.
The judge held that the fact that one of the jurors had held a conversation with a witness was
not in itself fatal to the trial, once the judge had investigated the possibility of a miscarriage and
had in his discretion decided that there was no miscarriage.

Discharging of Jury

In certain cases, on grounds of pre-trial prejudice, such as where there has been wide spread
publicity of a case, an entire jury may be prevented from hearing the trial. This is in situation
where the courts finds that the minds of the jury have been so prejudiced, against an accused
as to prevent them from coming to an impartial decision. Where, this happens the trial may
even be moved to another town or city in an attempt to overcome this prejudice.

Examining the Merits of trial by jury

The efficiency and desirability of trial by jury is an ongoing debate. Perhaps the most popular
criticism made against the jury is the accusation that their verdicts often run counter to the
evidence presented in court. Desoran sees this as one of the most crucial issues facing the jury
system. He identifies a tension area between strict areas of law on one hand and jury ‘common
sense’ or compassion on the other.10

Several reasons may be advance for the apparent inconsistency between the verdict and the
evidence- chief of this is the extent to which the jury is able to follow a judge’s instructions. The

8
(1963) 5 WIR 450
9
(9185) 39 WIR 295
10
Deosaran, R, Trial by Jury- A case study, Trinidad and Tobago: ISER, UWI.
juries function is to arbitrate on facts not law. The point of departure is the judge’s instruction. It
is here that judges direct where matters of fact are to be separated from matters law, and where
the substantive areas for jury deliberations are identified. If the jury is unable to appreciate
these esoteric distinctions, the jury process is corrupted. If the judge misdirects the jury as to
areas of consideration, the process is similarly flawed.

Advantages of the Jury System

Many of the accusation throw at the jury system may be seen to be flawed when examined
more closely.

The assertion that juries are poor because of poor educational standards, and their
resultant inability to understand questions of law, is exposed when one recalls their sole
function as arbitrators of facts. The jury’s primary tool is common sense. Surely one does not
need formal training to acquire this. Is education really necessary to separate fact from laws? It
is more likely that more highly educated juror will place more emphasis on procedures and
instruction than those with only elementary education. Those with elementary education is
likely to be more interested in opinions, testimony, and personal experiences, but it is in fact
these which concern the jury. It is the jury’s task to assess the truth of witness statement and
adjudicate on the facts. It is only common sense that is needed here.

The fact that judges and lawyers may disagree with a jury’s verdict does not necessarily mean
that it was not based on evidence and is wrong. The nature of the jury’s verdict does not
necessarily mean that it was not based on the evidence and was wrong. The nature of the jury’s
tasks, e.g. assessing the credibility of witness, leaves room for difference of opinion, at least a
margin of error. In deed Lord Devlin believes that the jury is the best suited to decide upon such
‘primary facts’, as a judge ‘may fail to make enough allowance for behaviour of the stupid’. 11

Similarly, the lack of legal training on the part of jurors allows them to bring a fresh outlook, as
opposed to the professional opinion of a judge who may have become hardened and cynical

11
Op cit, Devlin, fn 3, p 168.
after years of experience. Although this lack of legal sophistication may mean at times that the
jury is at the mercy of the cunning and manipulative accused person. As Weeramanty argues:

The long judicial experience affords no special insurance against… ‘being taken for a ride.’
Indeed, the insulations he has had from the ordinary problem which beset the ordinary citizen
may make him less discerning of these problems in real life when they do occur. 12

The sheer size of the jury is also an advantage in that it is unlikely that individual prejudice could
significantly affect the verdict. Both the jury and judges can fall prey to social, political and other
biases but, with the jury system, the citizen has additional protection. His fate is not being
decided by a single individual. It may even be of psychological significance to the judge, who is
relieved of this heavy burden.

The jury’s size also means that there is safety in numbers with regard to potential corruption in
the system. Indeed, the image of the infallible an incorruptible judge is erroneous. Recently, in
the commonwealth Caribbean there has been instances of corrupt judges. 13 Trial by jury can
therefore uphold independence and integrity of the jury system.

Another important feature of the jury system is that it can dispose of ‘hard cases’ without
changing the law. Where it seems that the proper application of legal principles lead to a
conclusion of guilt, but the verdict does not reflect this, a judicial precedent is not created.
Verdicts and judicial pronouncement make no impact on the law itself as do binding
precedents emanating from a judge. The flexibility of the jury system there allows a decision
away from the rigidity of the law, without injuring the fabric of the law.

The jury’s verdict is also the expression of the jury’s conscience, in that it reflects the society’s
ideal and feelings on a particular issue. For example, a jury’s refusal to convict can be an
expression of their revulsion towards the death penalty or police brutality. Hence, the jury may
be the yardstick of public feeling and a safety valve against unpopular law.

12
Weeramaantry, CG, ‘Judicial reasoning in common law’, Ninth Commonwealth Law Conference, 1990, New
Zealand: Commerce Clearing House, p 86.
13
See, eg, newspaper reports of judges and justices of the peace being investigated and prosecuted for corruption
in Trinidad and Tobago: (1997) The Trinidad Express, 12 May.
Please see the following sections of the Jury Act 1898:

SECTIONS:

2, 6, 24, 25, 31, 33, 34, 40, 45

Reference

Antoine, B, R. (2008). Commonwealth Caribbean Law and Legal Systems (2 ed.). New York, USA:

Routledge-Cavendish Publishing.