WORKBOOK 7

Jury Systems

Learning Outcomes:
By the end of this part of the course you should be able to:

 Explain the functions of the jury system; and the role of the judge and the jury
 Outline the advantages of the Jury system
 Identify the limits of the jury system, particularly in the context of the smallness of the
Commonwealth Caribbean
 Critically analyze the reform of the jury system.

Task 1: Before you attend the lecture:

Read the following

Background reading (This provides general reading that gives context, major ideas and themes,
vocabulary of the subject matter and credible information that can help you to understand the
essential reading)

Rose-Marie Belle Antoine. Commonwealth Caribbean Law and Legal Systems (2nd edn, Routledge
2008) Ch 9

Essential reading (This provides reading that gives specific examples, problem solving solutions,
and detailed analysis that provides tools for critical analysis)

IMPACT Justice report, Juries in the Caribbean, 2018 (http://caribbeanimpact.org/website/wp-

content/uploads/2018/02/Juries-in-the-Caribbean-Report-January-2018-2.pdf)
Also uploaded to e-learning

Spry, John ‘Problems of Jury Trials in Small jurisdictions” Commonwealth Secretariat, London
(1985)

Quin, Charles J, Recent Developments in Criminal Practice and Procedure: Non-Jury Trials in the
High Court and Witness Anonymity Orders available at https://www.judicial.ky/wp-content/
uploads/publications/speeches/Speech-Non-
JuryTrialsintheHighCourtandWitnessAnonymityOrders-QuinJ-September2013.pdf 1- 10 Gibson,

Marston CJ, The Continuing Relevance of the Jury System in the English Speaking Caribbean (2013)
available at: http://www.ttlawcourts.org/index.php/component/attachments/download/ 3519

Deosaran R “Trial by jury-Social and Psychological Dynamics”

“Trial by jury- A Case Study:” Trinidad; ISER
“The Future of Trial by Jury- How the System Works” Symposium 1980, UWI
“ The Jury System in a Post-Colonial Multi-racial society- Problems of Bias Vol 21” Br.Jr of
Criminology, Oct 1981, 305
(Students should read at least one of the above articles)

Devlin “Trial by Jury” Chap4-6

Other reading extracts and cases are noted in the workbook.

Additional Reading (The name is on the tin! This provides you with additional sources of
information that goes beyond the background and essential reading)

Patchett, K “English Law in the W.I (1963) 12 ICLQ 931-35

DeMerieux, M “ Fundamental Rights in the Commonwealth Caribbean Constitutions” pp 365-68

Denning “ What Next in the Law “ Part 2, pp 33-35, 59-70

Geoges T “ Is the Jury Trial an Essential Cornerstone of Justice?”

Dashwood ,A “Juries in a Multi-Racial Society”, [1972] Criminal Law Review 85 Zeisel , Hans “ Dr.
Spock and the case of the Vanishing Woman Jurors”

The Law Reform Committee (Jamaica) Report No.1 of 1974

Task 2: Make notes of the readings

Follow the workbook, take notes and do the readings.

Reference: https://www.oxbridgeessays.com/blog/master-lecture-notes-tips-really-work/
Note-Taking is an important Skill. We recommend you consider the methods suggested at the
above link. To get you started, we recommend you use the Cornell Method. If it does not work for
you, experiment with other styles that fit your needs. For the Cornell Method, Follow this link:
https://docs.google.com/document/d/1X5vuSm8piiUwnsoYlyTt28inijWNTBvj7-jGWTUSmSQ/edit?
hl=en_US make a copy of this template if you are working on your computer, or replicate in your
notebooks.
For more information: https://www.timeatlas.com/cornell-note-template/

Task 3: Answer the questions in the workbook

See questions at the end of this workbook.
Consider the Feynman Method to ensure you understand what you are engaging with.

STEP 1
Write the name of a concept at the top of whatever place you are planning to record your notes.
While purists will push for a physical pen and paper, this isn’t necessarily prescriptive - for example
a whiteboard or digital note taking app may be used, as long as you maintain focus and attention.
STEP 2
Begin to write out an explanation of the concept on your recording area. The important thing here
is to write it as if you were explaining it to a layman who has no knowledge of the concept. This
will begin to highlight what you understand, but more importantly where you have gaps in your
knowledge.
STEP 3
Pinpoint these exact gaps, essentially the areas where explanation is a struggle. Go back to your
source material, and reread and relearn these parts. Repeat Step 2 as a feedback loop as many
times as you require.
STEP 4
Once you have properly explained the concept, put on your editor's hat. If you are using overly
wordy or confusing language (or simply paraphrasing the source material) keep filtering your
content. Humans are really good at adding complexity - it takes a lot more cognitive effort to
remove it. Simplify your language, and, where possible, use simple analogy.
Reference: https://strategyumwelt.com/frameworks/feynman-technique

Task 4: Consolidation
Consolidate and review your notes.
If you need further assistance, discuss the material with your tutor and/or attend office hours.
Attempt past paper questions.

Introduction
 In the modern context, juries feature more frequently in criminal matters as opposed to
civil matters. However, only a minority of criminal matters, (namely indictable offences or
offences which are triable either way where the accused has elected a jury trial as opposed
to a summary determination) necessitate the involvement of a jury.

Since the 17th century it has been settled that the role of the jury is to determine the facts in
a matter. Therefore in matters where there is a jury, the jury will be the sole arbitrator of
the facts while the judge determines issues of law.

The appropriateness and reliability of jury trial has been and continues to be a bone of
contention. Some view the jury trial as an essential feature of democracy. Additionally, it
has been considered a mechanism through which the public can participate in the
administration of justice and an individual can be judged by his “peers”. However, the
concept of a jury trial is not without criticism. Critics of the jury system assert that juries
are , easily influenced by emotional factors and prejudices, are susceptible to relying on
irrelevant considerations when making a decision, may be unable to adequately assess
complex matters and lack judicial expertise.

Historical basis of trial by Jury (Common Law phenomenon)

(a) Norman times

The jury system is a common law creation and was a device brought over to England by
the Normans. However, the original jury system which existed back then differs
significantly in many years from the jury system with which we are presently familiar.

According to Lord Devlin in his book "Trial by Jury'', "the jury originated as a body of men
used in an inquisition or, in the English term, "an inquest". This jury was summoned by a
coroner. Also then called a 'crowner'. The juror himself was a man who was compelled by
the King to take an oath.

Lord Devlin notes that this form is the closest thing to what is the modem day jury.
However, he further notes that in those times the inquest was not concerned with the
administration of justice as they mainly relied on other forms of 'administration of justice'
such as "trial by battle" and "trial by ordeal."

The jury system was therefore originally used as a tool by the King for obtaining
information for administrative purposes.

(b) King Henry II

According to Lord Devlin, it was King Henry II who was directly responsible for
transforming the jury system into a system for the administration of justice, and Pope
Innocent III who was "indirectly responsible for its development as a peculiarly English
institution". During the time of King Henry II, it was recognized that the jury system could
be used to not only obtain information for administrative purposes but could be used to
elicit information which would allow the King to decide a dispute.

Purpose of jury trial; rationale for selection of jurors;

Purpose of the jury trial
The jury system was originally used as a tool by the King for obtaining information for
administrative purposes. Devlin gives the example of the use of the inquest in the
compilation of information for the Doomsday book.

However, the purpose of the jury system changed under the rule of King Henry who, in the
Grand Assize and the Petty Assize, ordained that in a dispute for title to land a litigant might
obtain a royal writ to have a jury summoned to decide the matter. This marks the beginning
of what became the modem day jury system.

How juries were chosen and the rationale for selection

The basis for the selection of jurors has evolved over time.

Historical times - Knowledge of the facts

Jurors in historical times were chosen from the neighborhood from among those men who
were deemed to have knowledge of all the relevant facts. It should be noted that at that
time only men were chosen and not women. Moreover, anyone who was ignorant of the
facts of the dispute was rejected.

However, it is during these historical times that we see the development of two important
cornerstones of the modem jury system:

(a) the 12-member jury and

(b) the need for the unanimity of their decision.

Petty juries in historical times consisted of 12 persons. The claimant must receive twelve
oaths in his favour i.e. the jury's decision must be unanimous.

The rationale behind the choosing of the number 12 is ambiguous and there have been
many explanations which have arisen in folklore. However, Devlin notes tongue-in-cheek
that ''what was wanted was a number that was large enough to create a formidable body of
opinion in favour of the side that won; and doubtless the reason for having twelve instead
of ten, eleven or thirteen was much the same as gives twelve pennies to the shilling and
which exhibits an early English abhorrence of the decimal system."

Modem times Impartiality

In modern times, as Devlin notes, the jury evolved to become "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 open court".

Therefore, one of the bases for eligibility of a juror in modern times is impartiality i.e.
ignorance of the facts of the case. Therefore, any juror who has prior knowledge of the facts
of the case must state this publicly. Case law reinforces the importance of impartiality.

The requirement for impartiality is demonstrated in the case of Howe v R (1972) 19 WIR
517 in which a juror who had been present at a previous conviction of the accused was
deemed to have had bias because he had the prior knowledge of the accused's character.
Other cases are:

R vKray (1969) 53 Cr. AppR 412

R v Liverpool City Justices exp Topping [1983} I WLR 119.

Eligibility, Exemptions and disqualification

Generally, the framework of the jury systems of the territories of the Commonwealth
Caribbean is set out in the Jury/ Juries Act of the particular jurisdiction. The Acts generally
outline the composition of the jury, set out the eligibility requirements and the grounds for
disqualification , outline the jury procedure and prescribe the form of jury verdicts.

At present, the eligibility requirements are not onerous as there has been a move away
from property ownership as the major eligibility requirement. Section 4 of the Juries Act
Cap 115 B Laws is generally indicative of the eligibility requirements which are found in the
legislation across the region. Under the Act individuals must be over 18 and under 65, be
either a citizen of or ordinarily resident in Barbados for a specified period, literate( i.e read
and write) and own or occupy property of prescribed value or demonstrate earning
capacity.

However, persons who have been convicted of a crime, are bankrupt, illiterate, deaf or
blind or persons who are of unsound mind are disqualified from jury duty under s 5 of the
Juries Act.

Eligibility for jury service: then and now

(Chapter 2 of Lord Devlin's book gives a good discussion on the composition of juries in
historical times - optional reading)

According to Lord Devlin, the "juryman in the eyes of the law is the epitome of the
reasonable man". The central principle which guides the eligibility of jurors for
empanelment is that a person is to be judged by his or her own peers. Therefore, in its
composition the jury is to be representative in nature. However, as Belle Antoine notes in
"Commonwealth Caribbean

Law & Legal Systems", the ideal is often different from

reality. Qualification criteria in Historical times

Devlin notes that at common law the qualification was that "the juror should be a freeman,
not a villain or an alien". But from the earliest times statutes have imposed a property
qualification as well. A man of property was thought less likely to be corruptible and more
easily punishable by fine.

Qualification criteria in Modern Times

As a general rule, the law seeks to choose a person representative of the society.

a. In Commonwealth Caribbean jurisdictions, statute provides the criteria that must be

met for a person to be eligible to serve on a jury. These are normally found in Juries Acts or
 in the case of St Lucia, the Criminal Code. The legislation usually provides age, residency,
literacy and property requirements for qualification as a juror, as well as not being
mentally disordered.

b. In Barbados, these qualification criteria are found in the Juries Act Cap llSB
section 4. On the qualifying date, the person must be:

 between the ages of 18 and 60 years

 be a citizen of Barbados who is ordinarily resident in Barbados. If he is not a
Barbadian, he must be a Commonwealth citizen who has been continuously
ordinarily resident in Barbados for 7 years or more immediately prior to the
qualifying date.
 Be able to read and write the English language and understand the same.

c. The section also provides certain property requirements which the potential juror must
meet in order to eligible. These are as follows:

4. (i)(d)(i) Be in possession of land of site value of not less than $960.00

(ii) is the occupier of any land which is entered on a valuation roll prepared under the Land
Valuation Act and for the time being in force, as having site value of not less than. $1 400;

(iii) has paid and property or other taxes or either of them in accordance with any
enactment in force in Barbados relating to such taxes of not less than $960 for the year
immediately before the qualifying date; or

(iv) was in actual receipt of a clear income for the year immediately before the qualifying
date of not less than $1,440 per annum.

(2) Notwithstanding subsection (1), any person who, on the qualifying date

(a) complies with the requirements of paragraphs (a) to (c) of that subsection;

and

(b) though not complying with any requirement of paragraph(d) of that sub section, is
married to a person who is qualified to serve on a jury under that subsection,
shall be qualified to serve on a jury.

Students can find the Barbados Act online here: http://www.barbadosemployers.com/wp-

content/uploads/2012/08/Juries-Act-Cap-115B.pdf
Disqualification of Jurors

Legislation in Commonwealth Caribbean jurisdictions also provides for the criteria for
disqualification of persons from jury service. The bases for disqualification of jurors tend
to be the same across the region.

In Barbados, the criteria for disqualification are found in section 5 of the Juries Act
CAP
 115B:

No person shall be qualified to serve on a jury who

(a) has been convicted of any misdemeanour in respect of which he has been sentenced to
imprisonment or of any arrestable offence unless in either case he has been granted a free
pardon;
(b) is unable to read and write; is a person of

(c) unsound mind;

(d) is deaf or blind;[Isn't this discriminatory?]

(e) is declared bankrupt under the law of Barbados and has not been discharged; or

(f) has entered into a deed of arrangement with his creditors.

Exemption from Jury Service

Legislation in Commonwealth Caribbean territories often include a generous list of persons

who may be exempted from jury service. This exclusion list tends to be the same across the
region and includes public officers, doctors, clergymen, lawyers, schoolmasters and persons
employed in the essential services.

In Barbados, section 6 of the Juries Act exempts the following persons from serving on
juries:

Exemptions: 6. The following persons are exempt from serving on juries

(a) members of the Privy Council;

(b) members and officers of the Senate or House of Assembly; (c) Judges;
(d) magistrate;

(e) ministers of the Christian religion ordained or otherwise set apart to the ministry of that
religion according to the usages of the persuasion to which they belong;

(1) Heads of Mission within the meaning of section 2 of the. Cap. Is.

Diplomatic Immunities and Privileges Act, and members of mission as defined by subsection
(2) of section 4 of that Act;
(g) Consular officers or Consular employees of a state.to which this section applies by
virtue of an order made by the Governor-General under section 9 of the Consular
Conventions Act;
(h) members of the armed forces of the Crown; Cap. 17.
(i) members of the Police Force;

j) such persons employed in the public service as the Judicial Advisory may prescribe by
regulations;
(k) Commissioners of Probate;
(l) attorneys-at-law;
(m) officers of the Courts of law;

(n) legally qualified medical practitioners;

(o) wives or husbands of persons mentioned in paragraphs (a) to (a).

Belle- Antoine notes that this generous list has led to several criticisms:

(1) Only a narrow group of people are actually eligible to sit on the jury
(2) This may have implications for the impartiality and efficiency of trial by jury

In light of the eligibility requirements and having regard to practice and the list of
exemptions, the general position is that the law seeks to select jurors from the middle
(possibly lower middle) class.

Relevant Acts

Antigua and Barbuda, Jury Act, Cap 41 as amended by Nos 18/1986, 18/1989
The Bahamas- s 20(2) of the Constitution, Juries Act, Ch 47 as amended by NO 11 of 1988
Barbados- Juries Act, Cap 115B
Belize- Juries Act, Cap 78 revised Laws 1991
Grenada- Jury Act, Cap 151 as amended
Dominica- Juries Act, Chap 5:70 Revised Laws, 1990, as amended by 26/1991
Jamaica- Jury Act, Revised Law, 1973
St. Kitts and Nevis- Jury Act, Cap 38 as amended Nos 22/1966;22/1967;16/1970
 St.Lucia- The Criminal Code Revised (1992) Part 111 Arts 786-841
St. Vincent- Jury Act, Chap 21, Revised Laws 1990

Consider
COP v Davis (1993) 43 WIR 1
Morales v Morales (1962) 5 WIR 235
Police Commissioner of Barbados v Hinds (1959) 2 WIR 305
Lazare v Wright [1911] 2 Trin I. R 23
Ward v James [1960] 1 QB 273

The Right to Trial by Jury - Whether criminal trials only or if civil what kind of suits?

(a) Regional statutory position

In most Commonwealth Caribbean jurisdictions, trial by jury is available in criminal trials,

and less commonly in civil trials. The only two countries which do not allow trial by jury in
civil trials are St. Lucia and Guyana. In Grenada, section 242 of the Jury Act provides that
trial by jury in civil trials is abolished, except in exceptional circumstances by discretion of
the judge.

Only the Bahamas has enshrined a constitutional right to trial by jury. As a general rule,
the jury is available for indictable offences and for some civil matters at the discretion of the
judge if good cause is shown.

In Barbados, s 44 of the Juries Act deals with the "Right to Jury Trial" in civil matters and
sets out the procedure. The relevant section is below:

PART VIII
Right to Jury Trial in Civil Cases

44. (1) Where, on the application of any party to an action or matter to be tried in the High
Court made not later than such time before the trial as may be prescribed by rules of court,
the Judge is satisfied that:
(a) a charge of fraud against that party; or
(b) a claim in respect of defamation, malicious prosecution or false imprisonment, slander
to title and slander of goods is in issue, the Judge shall order the action or matter to be tried
with a jury unless he is satisfied that the trial thereof requires any prolonged examination
of documents or accounts or any scientific or local investigation which cannot conveniently
be made with a jury.

9
We can see from this section that in Barbados, trial by jury in civil cases is only available in
the following cases:

Fraud charges Defamation claims Malicious prosecution False imprisonment Slander to title
Slander of goods

It should be noted that in Barbados, juries in civil matters consist of 9 jurors (per s 24(1) of
the Juries Act). ·

Belle- Antoine in Commonwealth Caribbean Law & Legal Systems notes that trial by jury in
civil cases appears to be on the decline more rapidly than in criminal cases.

Case law on trial by jury in civil matters are:

Miller v Dunkley (1933) 1 JLR 8

Boos v Ambard (1915) 2 Trin LR 327
Morales v Morales (1962) 5 WIR 235

In Morales v Morales, Wooding CJ held that "... according to our rules, all [civil] trials of
whatever nature must be by a judge without a jury unless the party applying for a jury
shows sufficient cause why there should be a jury."

COMPOSITION OF THE JURY

The legislation generally prescribes the composition of the jury. This composition (also
known as the array) may differ in number based on the offence with which the individual is
charged. For example s 24 of the Juries Act, Cap 115 B prescribes different compositions for
capital and non-capital offences. However there is a standard array in respect of civil trials

Section 24 provides that:

“In trials on indictment for murder and treason the array shall consist of 12 jurors and in
trials on indictment for any other criminal matter the array shall consist of 9 jurors.

(2) In trials for any civil matter the array shall consist of 9 jurors.

Notably, the array may during the course of the trail be reduced by two, in circumstances
were a juror dies or a judge discharges a juror due to illness for some other reason. In such
circumstances, the verdict is not invalidated. However, if more than two jurors are
discharged, a decision should be made to discharge the entire jury as any verdict of that
jury cannot be sustained.

10
In recent times, the composition of the jury has more frequently been questioned on the
issue of its representativeness as opposed to the number of the jury. There seems to be an
increasing trend to challenge composition of the jury on the issue of race. This argument
has not been successful in the region.

Challenging the Jury

After arraignment, there is opportunity for the prosecutor and the defence to challenge
prospective jurors.

There are two types of challenge:

 Peremptory challenge; and
 Challenge for cause.

A peremptory challenge is one for which no reason need be given. The defence has the right
of peremptory challenge. The number of peremptory challenges is prescribed by the
relevant legislation. Notably, the prosecution has no right of peremptory challenge, but has
the right to ‘stand by’. Both sides may challenge for cause without restriction in number.
However, in order to sustain a challenge for cause a strong basis for the same must be
outlined/

In addition to challenges on the basis of race, in recent years challenges has been mounted
in respect of gender.
The most common grounds for challenge for cause include: (a) Bias on grounds of
knowledge of the defendant
(b) Some other involvement in the case
(c) Prejudice on the basis of race: R v Smith [2003]1WLR 2229
(d) Prejudice on the basis of pre-trial publicity: R v Kray (1969) 53 Cr App R 4J2(supra)

In Rojas v Berliaque [2004] I LRC 296- a practice where jury service was compulsory for
males but discretionary for females was challenged on the constitutional ground that it
breached the accused’s right to a fair trial. When considering the issue the PC observed as
follows:

“... a non-discriminatory method of compilation of the jury lists was an essential ingredient of
a fair trial by jury, a principle inherent in the concept of a fair trial by an impartial jury A
jury
list complied on a basis which without objective justification, excluded from jury service
virtually one half of the otherwise eligible population was a jury list complied on a
discriminatory basis... the antithesis of a fairly constituted jury list ”

See also
R v Kray (1969) 53Cr App.R 412
R v Broderick [1970] Crim L.R 155

11
Exemptions to Jury Service-
If a person who is disqualified, unqualified or exempt as a juror sits in a jury, this is not an
automatic ground on which a conviction can be quashed s 8 of the Barbados Juries Act

Notably, a juror can apply to be exempted from jury service, however outside the list of
persons generally exempted under the legislation, the judge has to decide each application
on a case by case basis . This discretion is however not lightly exercised.

Note that persons may be exempted from jury service on the grounds prescribed in the
relevant legislation but not on the ground that his or her conscience does not permit him or
her to take part in judging a person. The obligation to serve on a jury does not infringe
freedom of conscience.

See: Re Eric Darien (A Juror) (1974) 22 W.I.R.323.

(a) Excused juror can be placed on panel for next or any other sitting.

Section 18(2) of the Juries Act [B] provides that any juror who has been excused from
serving at any court may be placed on the panel for the next or any succeeding sitting or
session of the court in lieu of the panel for which he has been excused.

(b) Failure of a summoned person to appear.

According to section 20 of the Juries Act [B], any person duly summoned to attend any court
as a juror who without sufficient excuse fails to appear in obedience ' to such summons or
absents himself from the court shall at the direction of the Judge forfeit such sum not
exceeding
fifty dollars as the Judge may direct, but the Judge, at any time during the sitting or session
of the
court, or at, or before the next sitting may remit the penalty.

(c)Power to excuse jurors summoned.

Section 21. (1) A Judge may in open court or in chambers exempt or discharge from service
during the whole or any part of a session any juror or jurors summoned by the Registrar for
that session if in the opinion of the Judge there remains an adequate number available for
the business of the court.
(2) A Judge may in open court or in chambers exempt from further service for a
period not exceeding four years jurors who have been engaged in a prolonged or difficult
civil or criminal trial.

Hinds v R (1999) 58 WIR 38

Abdool Salim Yaseen v The State [1990] 44 WIR 219

12
 Re Eric Darien ( A juror) (1974) 22 WIR 323.

Irregularities leading to Discharge of the Jury on Ground for Appeal

In circumstances of prejudice or apparent bias, the judge may discharge a juror or an entire
jury, so as to preserve an individual’s ability to obtain a fair trial. A decision for discharge
may be made following an application by either side or may be made by the judge on his
initiative. The exercise of this discretion should not however be lightly exercised as such a
decision is subject to appeal. Indeed if it appears that a judge wrongly exercised his
discretion, an ensuing conviction may be quashed on the basis of a material irregularity.
Myriad circumstances may arise in respect of which a determination must be made whether
to discharge juror or the jury. These include the juror(s)talking to witnesses, expressing
prejudice , refusing or failing to attend trial, close relationships with a party(ies) or external
contamination or intimidation of the jury . However, before making a decision on these
matters the judge must conduct an investigation.

Some instances of grounds of discharge include:

(a) Where the juror is related to the accused/parties/victim/witness or otherwise

connected with case

(b) Where the juror discusses the case with someone else (not always a ground for
discharge)

(c) Pre-trial prejudice

(d) Where their impartiality is compromised during the trial

See Shazad Khan & Timothy Hunt vs The State - Page 1 to 16 of the Judgment -
http://www.ttlawcourts.org/index.php/component/attachments/download/412v

Arthurton v R [2005] LRC 210.

Crosdale v R (1995) 46 WIR 278
R v Sawyer (1980) 71 Cr App R 28
Papan v The State (1999) 54 WIR 451
R v Baichendeen (1978) 56 WIR 213
Gibson v R [1962] 5 WIR 450
R v Flack [1985] Crim L.R 160
Chaitlal v R (1985) 39 WIR 295
R v Prime (1973) 57 Cr AppR. 632
R v Townsend [1982] 1 All ER 509
R v Spencer [1986 ]3 WLR 348

13
The Verdict

As regards, capital offences of murder and treason the only verdict that may be accepted is
a unanimous one. In respect of other matters a unanimous verdict is preferred however, the
judge may accept a majority verdict after a prescribed period has passed and the foreman
has indicate the jury’s inability to reach a unanimous verdict. See ss38-41 of Juries Act Cap
115B

Once a verdict is rendered, a high threshold must be met before it can be set aside.
Therefore it must be shown that there was some serious irregularly that led to a
miscarriage of justice. Indeed it must be shown that a different verdict would have been
reached by the juror if the irregularity had not occurred.In light of the accepted secrecy of
the jury room, allegations of bias or other irregularities will not be lightly accepted. Further,
the court will not lightly overturn a verdict once rendered if a juror indicates that he did not
agree with the same and made no objection when the foreman rendered the verdict.

Consider the following cases along with previous cases on discharge

Henry and Emmanuel v R (1993) 46 WIR 135

R v Clifton Steele (1975) 24 WIR 317
R v Chapman & Laundry [1976] 63 Cr App R 75
R v Nembhard (1964) 22 WIR 363.
Sanker & Pitt v R (1982) 33 WIR 64
R v Barry [1975] 1 WLR 190
R v Box and Box [1964] 1 B 430
Lewis-Lashley v The State (1987) 46 WIR 344

Jury Trials in Small Jurisdictions- Pre-Trial Publicity and the Right to a Fair Trial

In light of the small size of our jurisdictions, the impartiality of a jury trial is more likely to
be affected by a number of considerations. These include the following:

a) The likelihood that one or more jurors knows the parties are has prior knowledge of
the facts of the case;
b) The pervasive effect of pre-trial publicity and the reduced effectiveness of moving
the location of the trial;
c) The limited pool of jurors available which is exacerbated for the number individual
exempted from jury service;
d) The increased opportunity for intimidation or societal pressure to determine the
matter in a particular way

Despite these potential problems it must be noted that the threshold to be met when
relying on such factors is high

14
 Consider the following:

Independent Publishing Company Ltd v Attorney General of Trinidad and Tobago and
Anor [2004] UKPC 26
Boodram v Ag and Another (1995) 47 WIR 458
R v Leare [1995] CLR 445
Gibson v R (1962) 5 WIR 450
R v Stephens Sup Ct Case (U.K) No.2 of 1983 (discussed in Spry, supra)
R v Liverpool Justices [1983] 1 WLR 119
R v Mito Crim Case No.1 (1981) Falkand Lslands (also in Spry, supra)
Rv Porter (1965) 9 WIR 1

Also refresh your memories to the OJ Simpson case and the issues pertaining to the jury

Misdirection of the Jury/Failure of the judge to leave issues of law to the Jury/ Summing up and
misconduct by the judge

As previously mentioned, juries are arbiters of fact and as such the judge must leave the
determination of factual issues to the jury. However, the judge may issue the jury with
relevant instructions on the law where applicable in the form of directions. If a judge fails
to leave an appropriate issue to the jury , misdirects or jury or directs the jury in manner
which the jury does not understand, this may be a ground for mis-trial. Other circumstances
where the verdict of the jury may be successfully challenged in light of the conduct of the
judge include instances where it is determined that the judge displayed prejudice or
otherwise prejudiced the jury, where the judge intimidated or sought to rush the jury to
return a verdict or where the judge makes certain personal off the cuff comments about a
party or his/her legal representative

Consider

Thomas v R where judge accussed counsel of “stupidity”

R v Tommy Walker 91994) 45 WIR 296 at 303, where the judge hurried the jury
Ashby v The State (1994) 45 WIR 351;
Bernard v R (1994) 45 WIR 296
Freemantle v R (1994) 45 WIR 313
Thomas v R (1992) 44 WIR 76
Bucket v R (1964) 6 WIR 285
Berry Linton v R (1992) 41 WIR 241
Senvirantne v R [1936] 3 All ER;
Sookham v R (1971) 18 WIR 195
Douglas v R (1988) 40 WIR393
King v R (1961 4 WIR 307

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Retirement of the Jury

R v Alexander (1974) 1 WIR 422

Judge only Trials

Misick et al V the Queen [2015] UKPC 31, 12-24

Reform Proposals:

Experiences of Other Jurisdictions in Reforming the Jury System - Submissions of the Attorney
General of Turks and Caicos to Parliament

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

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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

Section 44 of the Criminal Justice Act 2003 allows the judge, following an application by the
prosecution, to order that a trial should proceed at Crown Court without a jury if two
conditions are satisfied.

• There is evidence of real and present danger that jury tampering would take place: s
44(4).
• s Notwithstanding any steps (including the provision of police protection) which might
reasonably be taken to prevent jury tampering, the likelihood that it would take place
would be so substantial as to make it necessary in the interests of justice for the trial to be
conducted without a jury: s 44(5).

Section 44(6) gives three examples of situations that might present a real and present
danger of jury tampering.

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 • A retrial of a case in which the jury at the previous trial were discharged due to
tampering.
• A case in which tampering has taken place in previous proceedings involving the
defendant or any of the defendants.
• Cases in which there has been intimidation or attempted intimidation of any person likely
to be a witness in the trial.

United Kingdom

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."

Also, see the seminal case: R v. Abdroikof (Appellant) and another 2007 – this House of Lords
case addressed the issue of having police and lawyers as jurors. (The case and a commentary is on
e-learning.)

Summary of Juries (Spry) Article

The Jury System

It may be useful to begin with a short note on the jury system. It is unnecessary to go into its
early history, but it should be remembered that it developed largely as a protection for the
individual against repressive acts of the executive, in the days when judges were very much
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"the King's Judges". With the growth of the independence of the judiciary, it is no longer so
necessary, but it is still a valued and a useful institution. Its merits are commonly held to be
—
(a) that a jury is able to bring its collective wisdom into play in deciding issues of fact,
particularly regarding the credibility of witnesses;

(b) that a jury can, on occasion, soften the operation of the law by a common sense or
humanitarian approach, where a judge, who has to give reasons for his decisions, is bound
to apply the law as he finds it;
(c) that a jury, by acquitting against the weight of evidence, can act as the voice of the public
expressing disapproval of a particular law or the bringing of a particular prosecution;
(d) the constant change of composition means that each jury comes fresh to a case, where to
a judge it may be just the latest in a succession of similar cases;
(e) the system allows the ordinary citizen a major role in the administration of justice and
helps towards a mutual understanding between the judges and the public.
These merits apply equally in the small territories of the Commonwealth and in the larger.

The criticisms of the jury system are—

(a) that jury trials last longer than trials held by a judge, with or without assessors, and are
consequently more expensive;
(b) that juries are not equipped to study complicated accounts or other documentary
evidence;
(c) that where there are several accused, and particularly where the charge is conspiracy,
juries find it difficult to appreciate which part of the evidence are admissible against some
defendants and not others;
(d) that jurors may be swayed by sympathy or prejudice and, in extreme cases, by public
hysteria.
e) A jury arbitrates on the facts and not the law and is so guided as to the law by the judge's
directions. If the jury is misdirected or misunderstands the judge's directions, this flaws the
jury process.(see Sookram v R (1971) 18 WIR 195 (RMBA 384)
f) Illiteracy and low educational levels can impact on the jury's effectiveness. In Nanan v
The State [1986] 35 WIR 358 (Privy Council, Trinidad & Tobago), the foreman did not know
the meaning of the word "unanimous" and thus instructed his fellow jury members that a
majority was all that was required.
g) Juries are usually not as representative as they should be due to gender and race
imbalances. This could affect the outcome of the decision.

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Questions

Consider and answer all the questions below based on the readings above:

1. What are the functions of the jury system, the role of the judge and the jury?

2. What are the advantages of the jury system?

3. What are the limits of the jury system, particularly in the context of the size of states
in the Caribbean Commonwealth?

4. What are the reforms being put forward for reform of the jury system?

Essay Question

Consider and draft a response to the statement below.

“There are too many things that can go wrong in jury trials. As such, it is not the most
efficient system for procuring justice.”

Critically discuss.

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