The Tribune

By MALCOLM STRACHAN

THE speed of justice in The Bahamas is anything but fast – this we know.

Take just one example of many – last month, a jury found Rodrigo Rolle guilty of the murder of an elderly American woman during a home invasion in Cat Island. This is 2024, the murder took place in 2017. Seven years for the case to wind its way through the system to the point where at last we can say this person is guilty of this crime.

That sluggish progress is far from uncommon – so when we hear of terms such as swift justice being bandied about, we must contrast it with what is actually taking place in many circumstances.

Now, let us consider again that seven-year crawl to justice in the case above. That, of course, takes the case through more than one administration – so this is an issue that is not just a PLP or FNM problem, but one that endures through multiple terms of office.

Some of that is down to resources – more courts, more judges, more forensic resources, and so on. But not all of it.

There have been suggestions such as night courts, while even the Prime Minister has lamented how murder cases used to be much shorter back when he was working in the courts.

There is, of course, a balance in some of the actions that needs to be struck based upon people’s human and constitutional rights.

Police Commissioner Clayton Fernander has protested a number of times about people being released on bail, saying earlier this year for example about those released within “two or three months” that “something is definitely wrong with that”. He went on to say: “The law says within two to three years if the matter doesn’t come up in a week within that period, then he or she should be entitled to be reviewed for bail, but two to three months? That is something we really have to look at.”

The law does not say that you can lock someone up who is not yet guilty of a crime for two to three years, it is no surprise to note – and it does suggest something of an overstep against the rights of the person.

Last week, in an illuminating discussion on a range of subjects by some of the top legal minds in the country at the Eugene Dupuch Distinguished Lecture series, another suggestion was put forward – a review of whether jury trials should be reduced or eliminated.

Court of Appeal president Sir Michael Barnett said: “Suppose you have a complex fraud case. A jury of seven persons of humble origins may not be able to fully grasp the complications of a fraud case involving commercial fraud, etc. I’m not sure that’s the best way of adjudicating that kind of dispute.

“We do need to take a clinical view as to whether or not there are ways in which we can, in fact, reform the criminal justice system and reduce, if not eliminate, the number of trials by jurors and the risk involving that.”

Former Justice Sir Burton Hall also suggested that juries should have to give reasons for their verdict – just as a magistrate would, noting that the appeal court may be challenged in addressing the outcome because if juries do not give reasons for a verdict, what does the court base its appeal decision on?

Meanwhile, former Chief Justice Sir Brian Moree suggested a “halfway measure” where someone is given the right to elect a trial by jury or a trial by judge.

The current Chief Justice, Sir Ian Winder, said the trial process would move much quicker if jury trials were no more, saying “it’s like pulling teeth” to get jurors to serve.

There is, of course, a constitutional problem to all of this.

Section 20 of the constitution gives people the right to “a fair hearing within a reasonable time by an independent and impartial court established by law”.

Section 20:2 (a) speaks to the fact that a person charged “shall be presumed to be innocent until he is proved or has pleaded guilty” – so the long-term locking-up of people without bail is locking up those presumed innocent.

And 20:2 (g) means an accused person shall “when charged on information in the Supreme Court, have the right to trial by jury”.

That means that in order to do away with someone’s right to a trial by jury, there would have to be constitutional change – and one only needs look at recent referendums to see the chances of success there.

Sir Brian’s suggestion of a halfway house may well not breach that, however – giving a choice to someone does not take away their right, but gives them an option. He suggests this works well in Trinidad, but it would be interesting to dive under the hood of that process to see exactly what kinds of cases progress in that fashion, and the overall impact on the progress of cases.

Getting a jury empanelled can indeed be a challenge – but it is not the lack of a jury that has cases dragging on for seven, eight, nine years or more. That is the last hurdle in the slow race.

A recent inquest, for example, saw some factors that will be familiar to the courts, with police documentation being slow or incomplete, and a number of cases see absent lawyers or officers forcing another delay.

Then there is a bigger question. We underestimate our democratic pillars at our peril. We talk of the presence of corruption in our society, but removing safeguards such as jury trials is a move we should make with great care. A glance across at Haiti shows how quickly public institutions can fall apart – with such a barrier as trial by jury removed, what would stop a future administration from trying to find ways to stack the judiciary with favourable judges who might not hold government members to account in the same way a jury might?

We have already seen concerns over whether powerful figures hold such sway that they may or may not get charged at all, would being able to opt out of a jury trial help to hold such individuals to account, or would people fear it might be another barrier to a successful prosecution?

Despite all this, it is a useful discussion to have – and the legal leaders at last week’s event were reasoned and wise in their counsel. How do we ensure the best outcome, while still retaining the protections not only in our constitution but against risks of the future? It is a delicate path to walk.