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The Demerara Assizes commenced on 6 October 2020 with an impressive list of 370 cases. Some of these cases will be disposed of within a few days whilst a percentage will conclude within minutes with the Defendant being released as having served sufficient time on remand – which in Guyana can literally be several years – a shocking fact that takes us neatly to the point of this letter, namely that our judicial system is sorely in need of an overhaul.
Our system is burdened by a serious backlog of cases, attributable to there being an insufficient number of puisne judges coupled with the high number of inmates on remand or serving relatively lengthy terms of imprisonment for possession of small quantities of cannabis. This has a knock-on effect impacting the average duration of remands in custody, and puts severe pressure on the accommodation capability of our prison service as a whole. Giving a speech recently as he handed over furnishings, equipment and law books donated by the IDB’s “Support for the Criminal Justice System” (SCJS) program to the newly commissioned Court Superintendent’s Office out of which police prosecutors operate, the Attorney General observed that Guyana’s prison population significantly surpasses the world’s average with a rate of 264 prisoners per 100,000 in the population. The main objective of the SCJS program is the reduction of the prison population in Guyana.
The current Covid-19 pandemic will remain with the world for quite some time going forward. Authoritative estimates range from a further 1 year to perhaps even 2 more years living with social distancing, and this reality has added a dimension that only serves to exacerbate the problem of a judicial system under stress. The Guyana Bar Association has observed that the accused’s constitutional right to a fair hearing within a reasonable time is not absolute and must be balanced against the enshrined citizens’ right to public health. The Chief Justice, in outlining a comprehensive set of measures approved by the Public Health authorities and put in place at the courts, said in a newspaper interview: “We cannot say to the prisoners we are very sorry we can’t provide the essential service that you need.” The new measures will not speed up the system.
The Attorney General has conceived a scheme intended to relieve some of this systemic stress. Persons holding the LL.B. degree from the University of Guyana but who have not proceeded to one of the regional law schools to qualify as attorneys-at-law, will soon have the opportunity to apply for a place on a 1-year course that will accredit them to work as police prosecutors in the Magistrates’ court. Complainants and their families, whom the State effectively represents, often feel as if their interests are not considered important. They see defendants being represented by trained attorneys, including the very best at the Bar, whilst in the Magistrates’ court the Prosecution case is presented by police officers with no formal legal training – leading to inequality of legal arms and an alarming incidence of misplaced case files resulting in unlikely acquittals and frustrating discontinuations.
Official comments indicate that the resuscitation of the Judicial Service Commission is regarded as a priority to facilitate the appointment of new judges. Criminal trials by judge alone ought also to be considered for all the reasons mentioned above, including fairness to the State in the context of juries being called upon to try cases of technically complex fraud and crimes of local notoriety. A fraud trial over several weeks and involving thousands of pages of evidence, is utterly boring to all and largely incomprehensible to most jurors. It is often practically impossible to assemble a jury of 12 presumably unbiased persons in a locality where graphic reports of a particularly heinous or scandalous crime had been widely circulated. In neither instance would a jury be a credible tribunal for the delivery of true justice.
One of my many cases whilst in practice as a barrister in the UK was a 4-handed passport fraud trial (and retrial) that went on for a total of 12 weeks of daily court sittings. This trial had been transferred from Shrewsbury to Bristol to mitigate the impact of pre-trial publicity on the First defendant, a local lawyer. We in Guyana do not have the built-in flexibility to effect such venue transfer as is possible in the UK. The murders of the 3 West Coast Berbice teenagers present a case in point, given the broad Guyanese context in terms of the place and timing of those terribly gruesome murders. The bias-inducing publicity unavoidably generated by the national press was much exacerbated by the unregulated comments and pictorial postings widely circulated on social media. Bishop Dr John Smith, Chairman of the Ethnic Relations Committee, has expressed his concerns about the effect today of social media. The reality is that almost everyone eligible for jury service today is the owner of a smartphone!
Trial by jury is a common law right established over 700 years ago with the publication of Magna Carta, as the best way of providing an accused person with the opportunity to have a fair trial judged by his peers – 12 ordinary men (and today women also) not learned in the law and who thus bring 12 pairs of fresh eyes and ears to the process. That the professional judge becomes case hardened by experience is all too true. In ‘either way’ matters in the UK, most serious criminals would opt for trial on indictment in the Crown Court before a jury rather than summary trial in the Magistrates’ court where the penalties are significantly lower. In Guyana the gambling man would elect summary trial every day – but only because the police might misplace the file!
Now could be the opportune time to move away from the standard set by Magna Carta when there were no smartphones and no Covid-19. A significant number of trials may be more efficiently and equitably heard by a judge sitting alone, who will process the evidence much more quickly than a jury could and counsel will necessarily skip the ‘made for jury’ drama and deliver shorter closing speeches. Fewer truly guilty defendants will walk free as the judge will be alive to nuances such as one defendant stressing his good character whilst another remains silent about his own character – yet judge alone trials will make the reduction of the prison population an attainable prospect. As trials are concluded more quickly, persons languishing on remand who have effectively served the time, and also those unjustly charged will be released more timeously.
The move towards judge alone trials is already under way in the Commonwealth Caribbean. Since 2011, Belize permits trial by judge alone in respect of murder and murder-related charges, where it is perceived that there is a danger of witnesses being tampered with, where the trial is likely to be burdensome on a jury and also in cases where the defendant takes the view that pre-trial publicity has rendered a fair trial unlikely. Trinidad & Tobago passed the Miscellaneous Provisions (Trial by Judge Alone) Act 2017 and recorded its first judge alone trial last year. Is Guyana next?