
Introduction
In the last thirty years it is hard to find a criminal case that has captured the interest of the Jamaican populace in the manner that the Vybz Kartel case has. The fact that the trial started off, just when the term social media was gaining traction and that it has continued along into the Tik-Tok era has served to ensure that all Jamaicans (at home and abroad) finally got a chance to see “their” final appellate Court in action, even if it meant waking up at some “bad hours”. Now that we have had the decision and have listened to the victory speeches of those lawyers who were acting for the Defendants, what next for Jamaica?
In the last thirty years it is hard to find a criminal case that has captured the interest of the Jamaican populace in the manner that the Vybz Kartel case has.

I pose this question of what next for Jamaica as without a doubt the defendants have their lawyers looking after their interests, but Jamaica who was on display courtesy of this case, needs persons and policies that promotes her interests. The first thing that Jamaica will want us to consider is the issue of whether we will continue with trial by Jury and if we are to continue with trial by Jury how can we protect our criminal trials from those whose motto is : money can buy anything.
Jury Misconduct
Whilst the appellants brought three grounds of appeal, the Judicial Committee of the Privy Council (the Committee) only considered one of the three grounds: the jury misconduct ground. Essentially by the last day of this 64-day jury trial only eleven (11) of the original twelve (12) member jury panel remained as one juror had to be released. At the time of the trial (2014) eleven was the minimum number of jurors who could be asked to return a verdict in a criminal trial in Jamaica. If another juror had to resign or was to be dismissed, the Judge would have had to terminate the trial and direct a new trial. Consequently, when on the last day of the trial the forewoman informed the Judge that one of the remaining eleven (11) had tried to offer bribes to his fellow Jurors, the trial Judge was faced with a dilemma: do I continue or do I terminate the trial and direct a new trial. Unfortunately, as it turned out, the learned Judge having had a discussion with the lawyers for the State and the Defendants, decided that he would proceed with the eleven, as opposed to terminating the trial. On the account relayed to the public by lawyers who were in the Judge’s Chambers, the Director of Public Prosecutions, who was not trial Counsel for the State, attended Court and was present in that meeting, where she encouraged the Judge not to terminate the trial but to just warn the jury in the customary manner. The Committee having considered the Jury mis-conduct point quashed all the convictions and remitted the matter to the Court of Appeal to now decide if there should be a fresh trial. The trial Judge in proceeding with the compromised juror undermined the right to a fair hearing to which the Appellants were entitled pursuant to the Jamaican Constitution.

Trial by Jury
Those persons who are in support of the absolute retention of trial by Jury should champion the adoption of the system to which Lord Lloyd Jones in delivering the advice of the Committee made reference to a provision in English criminal procedure whereby if a Judge has reason to believe that there has been jury tampering, the Judge can discharge the Jury and direct that the trial will continue as a Judge only trial. In the Kartel case, it is easy to see how beneficial such an approach would have been, as the trial Judge on discovering that there was jury tampering was faced with one option: terminate the trial as at that time (2014) he could not dismiss the culpable juror and still continue the trial, as he would have had a jury of ten persons, when the minimum required at the time was eleven (11). If we were to adopt the approach that gave our Judges the option to dismiss the jury in the face of jury tampering, it certainly would potentially serve to discourage those whose idea of Jury service amounts to a task that they perform on behalf of a defendant who can pay them to throw the case away. They would be discouraged as no longer will they retain usurping power to de-rail a trial thus causing the tax-payer millions to re-start.
Those persons who are in support of the absolute retention of trial by Jury should champion the adoption of the system to which Lord Lloyd Jones in delivering the advice of the Committee made reference to a provision in English criminal procedure whereby if a Judge has reason to believe that there has been jury tampering, the Judge can discharge the Jury and direct that the trial will continue as a Judge only trial.
However, I think we can go a step further (if we are to retain trial by jury) and consider granting the Prosecution the option of applying in advance of a criminal trial, to have the trial presided over by a single Judge without a jury. To succeed in an application of this kind, the State would have to persuade the court that there is a real and present danger that there would be jury tampering if the case were to go ahead with a Judge and a jury, notwithstanding any possible safeguards that could be put in place and the feasibility of such safeguards to prevent jury tampering. The defence would have the opportunity to respond to the State’s application. There is known case law (J,S, M v R [2010] EWCA Crim 1755) on this approach and policy makers should consider carefully training that Judges can be given or which country they could visit to see this useful approach in action, as issues of jury discomfort and inconvenience when measures to prevent jury tampering are applied will come into short focus.
There is known case law (J,S, M v R [2010] EWCA Crim 1755) on this approach and policy makers should consider carefully training that Judges can be given or which country they could visit to see this useful approach in action, as issues of jury discomfort and inconvenience when measures to prevent jury tampering are applied will come into short focus.
This is an option that I am suggesting should be explored, but only if we take the view that we want to maintain jury trials. This is worth exploring if only because it would give a Judge another option and serve as a serious deterrent to those who are hell bent on undermining our institutions with their unlawful conduct.
Judge Only Trials
Our constitution certainly does not confer on defendants in a criminal trial a right to be tried by a jury. It is a common law right that has evolved over time into something conferred by a statute as part of our criminal justice system. In light of this basic but often overlooked fact along with the impact that tampering can have on the course of a trial I can confess to having had thoughts of either abolishing jury trials altogether or have jury trials in very exceptional circumstances.
Judge only trials are already a feature of our criminal justice system as there are no trial by jury in our Parish Courts. Additionally, by virtue of section 11A of the Criminal Justice (Administration) Act an accused in the Circuit Court can elect to be tried by a Judge to the exclusion of a Jury. In the Gun Court non-capital offences are tried without a jury and this approach has survived a vigorous appeal in the Court of Appeal and it was not a matter that was found to be unconstitutional by the Privy Council when it was invited to review the Gun Court Act in its first outing in the case of Hinds. Therefore, with the foregoing in mind, it is time I think, for the Ministry of Justice, Attorney General and the Minister of Legal and Constitutional Affairs to cause a Joint Select Committee of Parliament to be created to examine the issue of whether Jamaica should further curtail jury trials without compromising the right to a fair hearing accorded by the constitution.
Therefore, with the foregoing in mind, it is time I think, for the Ministry of Justice, Attorney General and the Minister of Legal and Constitutional Affairs to cause a Joint Select Committee of Parliament to be created to examine the issue of whether Jamaica should further curtail jury trials without compromising the right to a fair hearing accorded by the constitution.
I am not suggesting that there is rampant jury tampering or at least there is no evidence of rampant jury tampering. However, that should not be the test: one in my view is far too many especially as it can cause a great deal of wasting of public resources. There is a middle ground, in addition to what has been said above and that would be that we limit jury trials to a specified list of offences, whilst in all other cases we give a Defendant the right to apply to have a jury trial at the discretion of a Judge. The point one is seeking to underscore here is not just that trial by jury is not a constitutional right but additionally, one is making the point that our society is far too small (numerically) for us to pretend as if we really can maintain the fiction that the 12 members of the jury are strangers to a defendant, his/her friends or his/her family. That’s the reality of our small state, and we can and should no longer pretend as if we are a country of twenty million, as is the case in parts of Africa or Europe. Our criminal justice system exists in a country where a great many people in our society think that money can buy them anything, including exoneration and the more familiar we are with each other the greater the risks of jury tampering.
Our criminal justice system exists in a country where a great many people in our society think that money can buy them anything, including exoneration and the more familiar we are with each other the greater the risks of jury tampering.
Is the Director of Public Prosecutions’ position tenable?
At paragraphs 31 of its advice, the Committee informs us of the fact that the Director of Public Prosecutions (DPP) though not being trial Counsel, was at Court and participated in the discussions with the Judge about whether the trial should have been terminated. We have been informed of her very significant role in encouraging the Judge to continue the trial, despite the reasoned and legally sound objections from those representing the Defendants. The learned Judge was encouraged by the DPP, we have been told, to adopt an obviously unconstitutional course. Jamaica has been caused embarrassment and the DPP should without a doubt consider her position. In this regard we remind ourselves of the fact that she is an Officer of the Court and in that capacity, no Officer must be seen to encourage a court to pursue an obviously unlawful course of action. This was not a situation where two lawyers disagreed over the interpretation of a word in a legal document or over the interpretation of a provision in a statute. The right to a fair hearing, as set out at section 16 of our constitution is non-negotiable and it is difficult to understand how it is that anyone, let alone the nation’s chief prosecutor, could have thought that it would have been rights affirming to persist with a juror who was compromised. Like all right-thinking Jamaicans, I certainly felt embarrassed listening to the Committee delivering its judgement. The DPP must tender her resignation. The confidence of the citizen in the system has been severely shaken and to start the painful process of regaining the confidence of a nation in this high constitutional office, she must offer her resignation, as I cannot conceive of her retaining the confidence of the nation after such a material failure/error.

The DPP must tender her resignation. The confidence of the citizen in the system has been severely shaken and to start the painful process of regaining the confidence of a nation in this high constitutional office, she must offer her resignation, as I cannot conceive of her retaining the confidence of the nation after such a material failure/error.
What Now for the CCJ?
As a glaring demonstration of how much of a damage has been done to the reputation of our institutions, we need only to listen to not just the usual voices that support the retention of appeals to the Privy Council, but the voices of usually neutral persons as they ponder the question of how ready we are to abolish appeals to the Committee and accede to the appellate jurisdiction of the Caribbean Court of Justice (CCJ). Of course, it is a misplaced and slightly opportunistic argument that somehow ignores the fact that the Caribbean Court of Justice was not involved in any of the decisions prior to the case going to the Committee. Further there is also a deliberate choice being made to ignore the rights affirming jurisprudence that has emanated from the CCJ in its over fifteen years of decision making. Nonetheless the damage has been done and the conflation of the two issues will continue but those of us who see the CCJ as essential to the emergence and continuous formulation of culturally relevant Caribbean Jurisprudence will have to remind retentionists of the simple truth which is this: the CCJ, given its progressive jurisprudential history would not have struggled in any way with such a case.
Landmark decision?
Whilst the case had garnered widescale public interest it was not a landmark ruling as the Committee in delivering its advice to His Majesty, did not declare any new legal principles. In fact, to the extent that the Committee declined to make any pronouncements on the relevance of the Interception of Communication Act in the trial, it declined to state any new principle of law and in so doing it gave its reasons. However, whilst it is not a landmark decision it certainly is one of those decisions that should cause us to review and reform aspects of our criminal justice system, both from the perspective of personnel and the laws. To respond in any other way would be to further undermine the democratic project that we embarked on in 1962.
.
Matondo K. Mukulu is a practising public-law barrister and attorney.
Great read!