Cabinet paper proposes judge-only trials
Attorney General Kim Wilson has proposed judge-alone trials for serious cases where there's a danger of jury tampering.
She says Bermuda has yet to reach a point where intimidation and threats are an issue, but the upsurge in violent crime means it merits consideration.
"There is a Cabinet discussion paper I've prepared that I'm planning on presenting to Cabinet," she revealed this week.
"It's in its infancy because we're just simply discussing it for exploration."
Sen. Wilson expects defence lawyers may object, but said: "It's certainly something that needs to be considered because if there's going to be an issue and touch wood, Bermuda has not reached this point yet where there's going to be jury tampering, then it is certainly something that has to be explored and considered as an option.
"It certainly warrants serious consideration when you're talking about a jurisdiction of this size where people know each other. Look how challenging it is sometimes to find impartial jury members. Even though it seems extreme, some of the measures that we're taking, my thoughts are let's have them on the books now so that in the event that Bermuda goes in that direction, then at least we have provisions in place."
The Cabinet is due to discuss the paper "very soon" according to Sen. Wilson. If it supports the proposals, drafters would be issued instructions to prepare new legislation.
Sen. Wilson said the idea is already being considered in other overseas territories and has been "heavily discussed" at the last two meetings of Attorneys General of the territories.
"I believe Cayman has taken the initiative first and I think BVI and Montserrat are also giving serious consideration to it, particularly BVI," she said.
According to news reports from Cayman, the Legislative Assembly is due to discuss an amendment to the criminal code later this year that would abolish jury trials in firearms-related cases. The Cayman Islands Criminal Defence Bar Association has reportedly written to the Attorney General to oppose the measure, saying the task of determining whether a person is guilty should remain within the province of the jury in all but the most minor cases.
The UK's Criminal Justice Act 2003 allows for trial by judge alone, where a court is satisfied there is clear evidence of a "real and present danger" that jury tampering could take place.
Sen. Wilson's proposals are along similar lines.
When she first publicly mooted the idea of judge-alone trials in March, she said they would only be held at the request of the defendant if he felt a jury would not give him a fair trial due to issues such as his nationality or the nature of the case.
However, the proposal she is now putting before Cabinet would also allow such a trial on the application of the prosecution too, if it is believed a jury could be under threat.
"Serious cases is what we would be looking at. What I would also consider is any case with the consent of the defendant, where the defendant says 'I want to waive my right to a jury'," she explained.
The issue of jury safety hit the headlines in May when the jury in a mob attack was given Police protection after an man was murdered at the victim's home, right in the middle of their deliberations. News of the slaying of George Lynch was only broken to the all-female panel after they'd reached final verdicts in the case, prompting several of them to break down in tears.
Both Puisne Judge Carlisle Greaves and defence lawyer Victoria Pearman stressed that it did not appear the jurors themselves were targets.
However, there was public speculation which the Police have refused to confirm or deny that Mr. Lynch was gunned down by mistake when the shooters were really after one of the witnesses in the case.