The Trial of the Jury System

Michaela Harte Murder Case

The one lesson that we all should derive from that verdict is that a jury would no longer accept any nonsense from police investigators and the police have got themselves to blame for that

By Krishna Das

Since the acquittal verdict in the Michaela Harte case there has been much outcry on the failures of the police to properly investigate the case, police brutality, the ineptness of our judicial system as well as a wholesale condemnation of Mauritius by the people in Ireland as a place where foreigners are murdered. It will take time for the dust to settle down on all this. The most important aspect of the aftermath of the case is the announced decision of the government to forward a request to the Law Reform Commission to look at the jury system in Mauritius.

Trial by jury has been part of our justice system for ages now. In an essay written by Lysander Spooner as far back as 1852, on Trial by Jury, the author wrote: For more than six hundred years – that is, since Magna Carta, in 1215 – there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.

Is the government by adopting that reactive attitude sending a message that a trial by jury will always result in a perverse verdict and that therefore to secure a more rational trial or more convictions if a case of a serious nature is tried before a judge or magistrate? Was not the jury dealing with what they considered oppressive conduct by the police in the Harte case?

Even before a judge or magistrate, if the procedural fundamental rights of a suspect who is alter charged or are not complied consequences may follow. It is however very rare that a confession has been thrown out by a court presided by a judge or magistrate. A breach of the rights of an accused will not by itself lead to an acquittal. It has been held that an item of evidence may not necessarily be inadmissible on account of a breach of a fundamental right and that the nature of the particular guarantee enjoyed by an accused and the nature of the breach of that right would have to be considered. The Privy Council held that in considering the item of evidence in dispute like a confession, for example, “the judge had to weigh the interest of the community in securing relevant evidence bearing on the commission of a serious crime so that justice could be done, with the interest of the individual who had been exposed to an illegal invasion of his rights”. However it would not generally be right to admit a confession where the police had deliberately frustrated a suspect’s rights, the Privy Council added.

Two questions arise here. First was the jury directed on the lines of the above reasoning by the Presiding Judge and did he attempt to or did make that distinction clear to the jury?   Second, was not the jury precisely saying to themselves that the confession of one of the accused should not be acted upon because his rights had been frustrated? Would it have made a difference if the case had been tried by a judge or magistrate?

The referral of the jury system to the Law Commission should not be a signal that the jury system has failed our criminal justice system. It would be too easy to use the jury as a scapegoat to abolish the system just because a verdict did not meet the expectations of people in Mauritius, in Ireland and in Great Britain. There are many arguments that can be put forward in support of the jury system or against it. These should be addressed dispassionately.

One of the key factors on a jury trial is the juror vetting. It is open to the prosecution and the defence to challenge individual jurors. It is always said that Jules Koenig, the late eminent barrister, would always challenge teachers who were summoned as jurors because, according to him, it is very difficult to convince teachers of the soundness of one’s argument. Mauritius is a small country with many ethnic groups coexisting or trying to coexist. Could the composition of the jury have been a determinant factor in the acquittal of the two accused? Jurors are human beings and though it has been said in a few cases decided by the Supreme Court that one should not understate the intelligence of the Mauritian jury, nonetheless no one knows what goes on in the mind of a juror and no one would ever know to what extent subjective attitude plays a role in coming to a verdict.

The one lesson that we all should derive from that verdict is that a jury would no longer accept any nonsense from police investigators and the police have got themselves to blame for that. Their often uncouth attitude, their arrogance, their abuse of authority, have alienated a large section of the public and they have an uphill task to undertake to reconquer the trust of the public.

* Published in print edition on 3 August 2012

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