My Lords, thank you for the opportunity to make these remarks at this year’s opening of the criminal session.
The importance of these sessions could not be over emphasized. But as far as we can recall, the sessions have seen very little change if at all. As with any human set up conscious of its own sustainability I believe that it is about time we began asking some pertinent questions of these criminal sessions as participants. I intend in this remarks to raise two issues that I consider very important for the criminal session.
- How efficient is our Jury System as is? and
- Is the Legal Aid Scheme adequately resourced to provide legal representation for persons charged on indictment so as to assist the criminal sessions?
Closely linked is how well have we protected our witnesses in Criminal cases?
By these remarks I wish to set the tone for the debate for possibilities to enhance future criminal sessions.
One of the hallowed inheritances from the Magna Carta and English Common Law is the right of citizens to be tried by their peers or by jury. Chapter 39 of King John’s Magna Carta includes the guarantee that no free man may suffer punishment without “the lawful judgment of his peers”. Trial by jury was meant to safeguard the rights and freedoms of citizens from arbitrariness of the state.
However, could our criminal sessions be better of without the trial by jury? It would appear that we have not done anything to improve or manage our Jury System hence its near collapse on us.
It is no secret that our jury system is severely challenged. For instance it is commonplace that absenteeism among jurors leads to unnecessary delays of criminal trials.
Also is the issue of professional jurors. A certain sense of professionalism is developing in the jury system. Some particular citizens are always selected to be jurors in several cases pending at the same time. Indeed some institutions keep sending the same persons for jury service. This is because those institutions send persons they believe they can do without.
How often have we not wondered about the caliber of persons who serve as jurors?
This is very important as in cases tried on indictment, the summing up of evidence and law by the judge, and the jurors’ appreciation of this exercise has a great impact on which way the scale of justice would tilt. Hence in a country with a very high percentage of uneducated citizens justice might not be done in many cases if the pool of citizens from which jurors are chosen is quite uneducated.
And even when we get persons to serve as jurors how well are they treated by the State? Are their meagre allowances paid regularly? Does the State provide them with adequate protection? The answers to these questions are unfortunately in the negative and this makes them susceptible to influence by accused persons and their relatives.
The obvious lapses in the jury system, having to do with unwillingness of persons to serve, caliber of persons who serve, the poor treatment of these persons by the State have no doubt exposed the jury system to vulnerabilities that can be exploited.
It is for this reason that I believe it is about time we took a real hard look at our jury system as is. Is it time to abolish it completely? Will the criminal trials in our country become more efficient with for instance trials by a single judge, or a panel of 3 judges or a judge with the aid of two assessors?
As far back as 2011, Mr Justice Kosi-Kaglo a High Court Judge at Koforidua is reported to have made the recommendation for the abolition of the jury system when members of the Parliamentary Committee on the Judiciary met judges, magistrates and members of staff of the Judicial Service in the Eastern Region in Koforidua on Friday, 21 October 2011.
He strongly recommended to Parliament to abolish trial by jury, since it does not normally ensure justice in certain criminal cases.
I believe it is the frustration many Judges have encountered that has prompted Justice Kosi Kaglo and other Judges calling for its abolition.
I intend to place this before the Bar Council for discussion and a definite position of the Bar.
The AG may wish to consider initiating the consultations and commencing the process to amend Act 30 to introduce a more effective, less time and resource consuming system.
I believe we also need to look at the legal representation of the accused persons, as it would appear that the Legal Aid Scheme is unable to cope with the volume of cases that are assigned to its staff.
The main challenge of the Legal Aid Scheme is lack of governmental support to make it function properly. It has never been on the priority list of the State.
I believe there is the need to adequately resource the Legal Aid Scheme if we are to ensure proper and efficient representation of accused persons. I also wish to suggest that court assigned briefs should be assigned to law firms and chambers and they should be tasked to ensure that the accused persons are adequately represented.
Finally we should also address the issue of lack of witness protection and the inability to pay the witnesses their allowances as this discourages witnesses from attending court and testifying for the speedy disposal of cases.
My Lords the Jury is still out on whether our Criminal Justice System is well served by our jury system as is.