THE NATURE AND COMPOSITION OF THE JURY
The jury system of a trial is an essential element of the democratic process. It attempts to secure fairness in the justice system. Traditionally, the jury system has been viewed as a cornerstone of common law procedure. However, the use of the system of trial by jury 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 a summary or an indictable offence.
The modern jury is composed of a maximum of 12 members. Typically, in murder and treason, the jury consists of 12 members, while in other criminal trials it may be 9. In civil matters, the jury often consists of 9 members. Before this century, the jury system was widely believed to be one of the chief safeguards of rights against the abuse of judicial power. Trial by jury was felt to be an essential and inviolable right, a security blanket to ensure the liberties of citizens as against the State.
The notion of the jury system as an essential feature of the democratic process is not a contemporary one. Interestingly, the original jury was the King's judges, and there was no concept of the independence of the judiciary as we know it today.
Essentially, the jury's purpose is to be the sole judges of the facts as opposed to the law. In contemporary times, we believe that, to be judges of fact, one must come to the court ignorant of the facts. Impartiality in adjudicating is therefore based on ignorance of the facts. Strangely, however, the original method used by the ancient jury was just the opposite. Indeed, in Henry 11's time, the jury was drawn from the persons in the neighbourhood who were taken to have knowledge of all the relevant facts. This concept, peculiar to modern minds, was later changed to that of: 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. Per Lord Devlin, in his book Trial by Jury.
The ideal for the modern jury is complete obscurity. To this end, if any juror has knowledge of the facts, he must state this publicly. The need for impartiality is demonstrated in the case of Howe v. R. (1972). Here, one of the jurors had been present at a previous conviction of the accused. This was sufficient grounds to establish bias.
THE SPECIAL JURY
Apart from the common jury, outlined above, there is, in some Caribbean jurisdictions, such as Barbados and Trinidad and Tobago, what is known as a 'special jury'. This jury usually consists of persons with special qualifications, whether professional or trade, which relate to the matter being tried. The special jury is used 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. See sections 8 and 29-32 of the T. & T. Jury Act Ch 6:53.
The 'special jury' is not a modern invention. Of historical note are the special juries of medieval times, such as juries composed of the cooks and fishmongers who sat in respect of charges of selling bad food.
THE RIGHT TO TRIAL BY JURY
Despite the importance of jury trials to the 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 types of 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 fallible. In determining whether trial by jury is available for an offence, the first important question is whether the offence is of a civil or criminal nature. If it is a criminal matter, it must then depend on whether it is a summary or indictable offence.
As a general rule, no absolute right...