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If judge-only trials are legislated in Barbados, accused persons should be allowed to decide whether they want to go that route or face a jury.

That suggestion has been put forward by the Barbados Bar Association (BBA) which said it has written to Attorney General Dale Marshall and newly installed Chief Justice Patterson Cheltenham on the matter.

Over the weekend, at Cheltenham’s swearing-in as Barbados’ fifth Chief Justice, Marshall said consideration was being given to introducing judge-only trials.

“While a draft Bill has not yet been circulated, the BBA hopes that the draft legislation will allow for the accused person to elect and consent to such a trial, and would be deeply concerned with any election to be framed with mandatory provisions. Academic learning posits that the defendant has both a moral and a legal right to choose a judge-alone trial,” the BBA said in a statement.

The association added that while it was aware of the challenges posed by the COVID-19 pandemic, it was important to ensure that the provisions were properly suited to Barbados’ context and resources.

“The requirement for consent is critically important. In Australia, in some states, there is a requirement for the accused person to consent to such a trial. As obvious as that may appear, in the Australian state of Canberra, a recent amendment to the Criminal Procedure Act was passed during the state-wide lockdown as part of emergency measures. The amendment granted power to a judge to order a judge-only trial, whether or not the accused agreed. Notwithstanding the fact that such measures were driven by the emergency caused by the [COVID-19] pandemic, this amendment prompted sharp response from the Law Council in Australia and is now the subject of a constitutional challenge,” it said.

The BBA called for democratic engagement and for models from other jurisdictions to be carefully considered before a final decision is made, as it pointed out that a jury had become a staple in this country’s judicial system.

“Jury duty, for all of its flaws, is an exercise in democracy, a cornerstone in the system of fair administration of justice. The public of Barbados has a vested interest in the manner in which justice is dispensed. It is an important exercise in that democratic process to ensure that a cross-section of our citizens engage in a process to determine an accused’s guilt or innocence at trial,” the Bar Association noted.

“While not absolutely opposed to the introduction of judge-only trials, the BBA wishes to sound a note of caution. The introduction of such provisions ought not be reactionary, but rather the BBA calls for a consultative approach, with more analysis and study of judge-only trials before such legislation is presented. In particular, the BBA would wish to ensure that the provisions are properly suited to the context and resources in Barbados.”

The BBA called for an evidence-based approach to the introduction of judge-only trials, including research from other Commonwealth jurisdictions. “Consideration should be given to the question, ‘should there be a single judge, or a panel of judges, or a hybrid panel of a judge with two lay-persons? Will the composition of the trial panel depend on the charges brought against the accused?’” it questioned.

(randybennett@barbadostoday.bb)