By NEWSDAY STAFF Monday, March 11 2013

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LEGAL CHAT: Former Inspector of Prisons Daniel Khan, left, who is opposed to Government's plan to do away with trial by jury for 26 offences, is seen ...

FORMER Inspector of Prisons Daniel Khan has hit Government’s intention to do away with trial by jury, for 26 specific offences, thus empowering a judge to determine a person’s innocence or guilt.

“The jury trial is Trinidad and Tobago’s landmark against arbitrary executive power and the proposed bill seeks to threaten this. We must resist this move as it saps and undermines this sacred right by introducing new and arbitrary methods of trial,” Khan stated via an e-mailed release to Newsday. In TT, there are two types of trial namely summary and indictable matters. Summary matters are those where a magistrate determines the innocence or guilt of a defendant and usually relates to less serious criminal matters.

Indictable matters are those where a preliminary inquiry must be held in the Magistrates’ Court to test the strength of a case against a defendant and whether or not the case should be sent to the High Courts for a trial before a judge and jury. In a statement during the sitting of the House of Representatives on March 1, National Security Minister Jack Warner said Government intends to do away with jury trials for, “blood or violent crimes”, as part of new crime-fighting measures.

“The Attorney General has also proposed, Mr Speaker, that we consider the abolition of jury trial for blood crimes or violent crimes. No jury trial. This will allow judges more time and result in a quicker trial time,” Warner emphasised in his statement to the House.

“These proposals are currently engaging Cabinet’s attention, and you will hear more about those proposals shortly,” Warner told the House. But attorney Khan, son of Senior Counsel Israel Khan, said he is opposed to the proposed amendment 2013 bill to the Criminal Procedure Act Chap 12:02, which proposes to allow a judge to determine the innocence or guilt of an accused persons in 26 listed offences.

Citing Lord Delvin in his text of Trial by Jury Hamlyn Lecture Series, Khan said trial by jury ensures justice is meted out by the common man (a jury of a defendant’s peers) and ensures that criminal law conforms to the ordinary man’s idea of what is fair and just.

Khan said it has not been disclosed in the bill the purpose or mischief the bill seeks to cure.

“It should be noted that the life and liberty of an accused person in the Republic of Trinidad and Tobago are of the most momentous concern and all trials at the High Court could affect the life and or liberty of an accused person,” Khan said. “Jury trials are considered to be part and parcel of a democratic society and the act seeks to curtail the people’s participation in the administration of the criminal justice system. I share the following opinion of Mr Israel Khan SC ‘The notion that it is necessary to remove the institutions and system of Justice (i.e trial by jury) which protect the innocent in order to ensure that those guilty of committing crimes must be convicted is not in keeping with the philosophy and principles of a liberal democratic state.’ Khan cited issues of police mischief, reasonable man test, issues of inadmissable confessions and political accused as being critical reasons for keeping trial by jury. Of police mischief, he said, “Judges who are always accused of living in ivory towers may not know of the realities of police brutality and police conspiracies which are issues that often arise in many criminal cases.” The common man, he said, is more aware of these issues and better equipped to resolve issues surrounding the credibility of police officers.

Of the “reasonable man test”, the former Inspector of Prisons said, judges may have difficulties in determining issues that arise out of the “reasonable man test”, which is often raised in many criminal trials that has traditionally been resolved by ordinary citizens.

“Further difficulties may also arise where a judge hearing a case may be exposed to an incriminating confessional statement that on the law, he may rule inadmissible, but having heard the evidence in the statement, may have a residual effect that may taint his findings on the rest of the admissible evidence,” Khan said.

He cited attorney Ravi Rajcoomar, who had the view that judges will have “difficulties” determining the guilt of an accused who is a public figure or from a certain political background.

Khan also pointed out that several judges on the bench, at one point or another, worked for the State via the Office of the Director of Public Prosecutions, and as such, may have residual/unconscious biases in favour of the prosecution. However, a trial by jury will nullify this bias. “If we close our eyes to this change and stand by while nothing is done, the jury system which is the lamp that shows that darkness reigns will eventually be extinguished and we will forever live in darkness,” Khan warned. Efforts to reach National Security Minister Warner for a comment yesterday proved futile.