Fixing the Jury System in the Bahamas

by Craig Butler

This past week the government began a parliamentary debate on a bill to amend the Juries Act. The main thrust of this amendment is to reduce the number of jurors in non-capital cases from 12 to nine

I was called by a reporter from the Nassau Guardian and asked to comment. I stated that I had no problem with such a move as I was on the side of justice and I thought that a jury of nine could still deliberate fairly. On reading the article that was produced, I was surprised to see that I was the only person quoted in favour of the proposal.

On closer inspection, however, I realized that the others asked were simply grandstanding, as they had avoided the question completely and tried to shift the emphasis to what was wrong in the judicial system. This was particularly annoying when coming from the president of the Bar Association.

The Bar Association has a duty to speak for those in the legal profession who can’t speak for themselves - specifically the judiciary. Let’s face it, there are many problems with this branch of government that need to be addressed seriously and quickly.

I am happy to see that the government has already appointed two judges, and according to the gossip in the market there is a move afoot to appoint more. This is the most significant advance that can be made to cure the tremendous backlog that exists in our clogged judicial calendar.

Judges need to be better remunerated and the conditions under which they work need to be vastly improved. Other measures need to be put in place that would afford the judiciary a higher level of respect. We all know this as it has been spoken about time and again. But the original question centered on the jury system and not the judiciary.

In the House of Assembly the PLP have opposed the jury amendment. Quite frankly I believe this to be no more than partisan politics and in this particular instance I feel as though this is clearly the wrong move. The PLP will say that there was no consultation, as the Bar was not given an opportunity to voice its opinions and they, as the Opposition, were not fully appraised.

Additionally, the PLP argue that they are unclear as to what the purpose of the amendment is and more importantly the measure does not go far enough. It is akin to applying a band-aid to a gushing wound as the more pressing needs have yet to be addressed.

That is true, and the government has not proposed any additional legislation to fix the many faults. However, if the opposition has no problem with this particular amendment, why not support it and at the same time seek to embarrass the government by showing all the faults?

Not wanting to be out of step with what was the norm in the region I conducted some research and was quite happy to find that my views accorded more with that which is prevalent in the region.

For instance, in the Commonwealth Caribbean the Bahamas and Guyana are the only countries that have a 12-person jury for all cases. In Antigua and Dominica the jury consists of 9 persons in all cases inclusive of capital ones. In Barbados, Grenada, St. Lucia, St. Vincent, Trinidad & Tobago and St. Kitts & Nevis the jury is nine for non-capital cases and 12 iotherwise, and in Jamaica it is seven for non-capital cases.

So I then asked whether the level of justice had eroded in these jurisdictions because of the reduction and the answer was a resounding NO.

Based on the above I can not see any reason for denying the amendment. The opposition can say that the amendments don’t go far enough because they have failed to address the pay that jurors receive or the conditions under which they and all other people have to attend court. But a valid point is still not enough to oppose the bill and the Opposition can use other means to achieve its objective.

The Bahamas is a small nation and we all tend to know one another. Nine persons would make it a little easier to empanel a jury, and it seems to me that this has to be one of the main reasons for reducing the size. There is also research that seems to suggest that a nine-person jury deliberates a little faster and on the whole arrives at the same decision as a 12-person panel.

Trial by jury is said to have originated in England during the 11th century. It evolved to share equal power with the judge and came into its own during the struggles of Charles II and James II. But despite the established tradition of the jury trial for serious offences in countries with a common law legal system, it has nonetheless been the subject of scathing attacks. Margo Hunter wrote:

“The 12-person jury dates to early English common law. Jury size in England was fixed at 12 persons by the middle of the 14th century. By the 18th century, the same was true of the American colonies. Although many theories have been advanced to explain the origin of the 12-person jury, it is still unclear how this requirement gained importance."

As the United States Supreme Court made clear in a series of cases beginning in 1970, the US Constitution does not require juries to have 12 members in all cases. The practice of having 12 jurors was apparently a "historical accident unrelated to the great purposes which gave rise to the jury in the first place." Williams v. Florida, 399 U.S. 78 (1970).

In 1973, the Supreme Court held that juries in civil cases in federal court could also consist of as few as six jurors. Colgrove v. Battin, 413 U.S. 149 (1973).

According to the court, the real test of the constitutionality of jury size is whether jury size affects the essential function of the jury. That essential function is to ensure that cases are resolved using the common sense judgment of the community through community participation. This means that the jury must be large enough to do the following: (1) Promote deliberation free from outside attempts of intimidation, and (2) Provide a fair possibility for obtaining a representative cross section of the community.”

Comments

[Steffan Antonas]

Craig,

Great article. You've asked the right questions. Why should we hold on to the number 12? - it seems arbitrary, and without any scientific study that explains why we've come to that number, it's right to rethink it's relevance in the deliberation process. Why follow old rules simply because it's the way it's been done since the 14th century, when reducing the number to 9 does not affect the essential function of the jury or its conclusions? If it makes the judicial process cheaper and more efficient, and we can point to evidence that says that, historically, outcomes are generally the same for cases with smaller juries than with 12 - what reason would we have to oppose the new bill? It would seem backwards to do so.

[C.Lowe]

Remember, technically we have not acknowledged that we even have a major crime problem yet.
Just today in the news there was the Police spokesperson denying an "out of control" problem, downplaying it into an increase.
Solution?
Build a prison for a capacity of 20,000. Message? we can handle the criminals once prosecuted.
Separate civil and petty criminals from major criminals.
Bring in and pay properly at least 40+ magistrates for Nassau and 20+ supreme court justices from the commonwealth countries to serve along side Bahamians qualified. It might keep the Bahamian judges honest !
10+ Magistrates for Freeport, 6+ Supreme court Justices.
Message? We will process you quickly.
Equip the Police with all tools proven to assist them as in all other countries.
Helicopters( offered to all three past administrations by the private sector and turned down)
video cameras in public places
Decent pay scale for officers
Remove political appointments and promotions. STop political interference.
Hold members of the Bar accountable. Justice is not a money mill for their personal enrichment.
Put in place professional C.O.P procecutors not police officers studying law.
Message? we will get you sooner or later.
We will prosecute you professionally.

WIll this win popularity contests?
No, but it is a start to addressing a very real threat to our national and individual security.
Remember dead people don't vote, so it is up to those still alive to send a clear message to those in positions to make decisions, decisions that cannot afford delay.
It will only get worse otherwise, something it's been doing for the past 30 years.
P.S. None of the political players I see in my opinion on either side have the guts or determination to deal with this,
but that will not make the problem go away.