Sykes points to unfair speculation of bias

Sykes points to unfair speculation of bias

Senior staff reporter

Friday, October 30, 2020

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CHIEF Justice Bryan Sykes says the pushback in some quarters over his counsel that defence lawyers make more use of bench trials, as opposed to jury trials, has unfairly fed speculations of bias on the bench and are not grounded in facts.

“One learned Queen's Counsel penned an article in the newspaper where it was being suggested that unless the judge has some experience at the private bar, then he's more likely to be unbiased in favour of the prosecution. When you hear that kind of argument you would want to think that bench trials have a greater conviction rate than jury trials,” Sykes said yesterday.

In June, Sykes, while speaking against the background of the COVID-19 restrictions at the nation's courts, where jury trials remain suspended because juror boxes do not allow for physical distancing, said while this option was allowed by law for most cases, a number of defence attorneys have balked at the provision.

“The only trial that still needs a jury is a murder trial where the death penalty is in issue. That is a small percentage of the cases now. Ninety-nine per cent of the cases that would involve a jury can be tried by a judge sitting without a jury. The dates are available, but the lawyers are reluctant,” the chief justice said then.

Yesterday, at the first-ever meeting between a chief justice and a president of the Court of Appeal with journalists, Justice Sykes addressed sentiments raised from the private bar that bench trials, or trials by a judge alone, were not embraced as some judges are more prone to bias in favour of the prosecution.

According to Sykes, data in relation to this issue do not support the lawyers' argument.

“What the data is telling us is that in the circuit courts and the gun courts, when they have bench trials the conviction rate is 37 per cent; in the jury trials it is 46 per cent. It really begs the question [whether] judges are as biased as persons are suggesting,” the chief justice stated.

“For us the issue is not whether the judge came from a prosecutorial background or some other background,” he said further, noting that “when you look at the cases coming from the Court of Appeal you will observe that in all of this debate, no data has indicated successful appeals on the basis that the judge is biased in favour of the prosecution.”

“There is provision in law for there to be appeal on the basis that the evidence does not support the conviction. If the judges have this predisposition then you would almost expect to see more appeals arguing successfully that the evidence cannot support the verdict of guilty — and that really is not the case,” the chief justice argued.

“When we are having debates we must really be informed and rely on accurate information,” he said, pointing out that judges at all levels are required to give reasons for the decisions they make.

“The judge has to demonstrate in writing. The judge has to review the evidence and evaluate the evidence and demonstrate an understanding of the law applicable to that particular case, and show how he or she came to that particular conclusion.

“Juries, on the other hand, are not required to state one line or word of reason. The jury goes away with the summation, discuss and come back, and they simply say guilty, not guilty, or we can't agree,” he noted.

While making it clear that he was “not saying that one form of trial is inherently superior to another”, the chief justice contended that “in the context of jury trials it is actually based upon an assumption that over the period of time the jury has been sitting in the box they have in fact been following the evidence, understand all the evidence that they have heard, and that they understand the directions overall given to them by the judge”.

He said on the converse, lawyers have to be exposed to five years of training and then have some 10 years of experience to serve at the level of the Supreme Court or the Court of Appeal.

“In a jury, persons are coming in and they are expected to understand the evidence, understand the law, digest it, apply it and come back with a decision [sometimes in less than 24 hours]. Persons will have to make up their minds about the process,” the chief justice stated.

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