Recently, there have been calls for the Bermuda Government to enact legislation to eliminate a defendant's right to trial by jury, particularly in criminal cases involving gang violence and the use of firearms. Before going too far down this road, we need to understand a few legal principles.

First of all, the Bermuda legislature doesn't have the legal power to eliminate the right to trial by jury. Here's why. The laws of Bermuda are broken into two parts: Constitutional Laws and Legislated Laws.

Constitutional Laws are the highest and most important laws of the country. They set out the powers of the Judiciary (i.e., the courts), the Legislature (where Legislated Laws are enacted) and the Executive (i.e., the Governor, Premier and Cabinet Ministers) and also set out certain protections of our fundamental rights and freedoms that each of us enjoy, such as the protected right to free speech, protection from arbitrary arrest or detention, and the protected right of free association (i.e., you can hang out with whomever you want).

Legislated laws are laws enacted by the Legislature, which consists of the House of Assembly (i.e., elected MPs), the Senate and the Governor (who represents the Queen). These are the laws that make murder a crime, require that you to pay customs duty on goods you import and ban the use of fish pots. In other words, they are the ordinary laws that you and I think of when we talk about "the law". The key point is that all legislated laws must conform with the fundamental principles set out in our constitutional laws, else they are invalid. Which brings us back to our discussion about juries.

Section 6(2)(g) of the Bermuda Constitution says, "every person who is charged with a criminal offence shall, when charged in the Supreme Court, have the right to trial by jury". This means that one of the protected rights and freedoms that every person in Bermuda enjoys is the right to a trial by jury, and therefore any attempt by the Bermuda Legislature to limit that right will be invalid.

However, that is not the end of the story.

It is possible to amend the Bermuda Constitution to eliminate the fundamental right to trial by jury, but that is a very involved process and can only be done by the entity that created the Constitution – the British Government. And my understanding of the facts (as told to me by a former Bermuda Member of Parliament) is that the UK Labour government indicated in 2003 (when it last amended the Bermuda Constitution) that it would not be willing to make any further amendments to the Bermuda Constitution, except a final amendment authorising Independence.

However, again that is not the end of the story. First, the UK Labour Party is no longer in power, and there may be a chance that the new coalition government lead by the Conservatives is more sympathetic to a Constitutional amendment.

Second, in 2006 the British Government ratified the United Nations Convention against Transnational Organised Crime, and Article 30 of that Convention obligates Great Britain to help developing countries in their fight against transnational organised crime (which would include criminal gangs importing and selling drugs).

Clearly Bermuda is not a developing country, but we may fall within the spirit of the UN convention in that we often have to rely on larger countries for assistance, and Great Britain may provide Bermuda with that assistance by amending the Constitution to eliminate the right to trial by jury for cases involving gang violence or the use of firearms. But that will likely be a long process, and its chances of success are slim.

First of all, we will have to convince Great Britain to change its announced policy that it will not make any more constitutional amendments for Bermuda. Second, we will have to convince them that they should eliminate a protected fundamental right and freedom that has existed for hundreds of years, and to do that, at a minimum, we will need to show that the Bermuda Bar Council has fully researched the many legal and social issues involved with this change and fully endorse it, and the change has been fully explained to the Bermuda general public and they endorse it. Obviously, this is a very time-consuming exercise that has only a limited chance of success. And even if we are successful, that change alone won't stop the bullets from flying because gangs will still be able to threaten and intimidate witnesses and thereby impede the course of justice, and police and prosecutors will still not have the tools needed to effectively break down the gang structure because we still haven't enacted proper anti-gang legislation. But there are things that the Bermuda Legislature can do immediately to protect juries from the threat of gang retaliation.

For instance, even though accused persons have a constitutionally-guaranteed right to trial by jury, it is arguable that that right is not so broad that it includes the right to see the jury. A two-way mirror or clouded glass surrounding the jury may help in this regard, as would a court order that

(i) banned the publication of jurors and witnesses' names,

(ii) prohibited legal counsel from disclosing the identity of jurors, even to clients, and

(iii) allowed jurors to enter the courtroom and sit behind the two-way mirror before anyone from the public entered the courtroom, and leave the courtroom after everyone else had left, thereby further protecting their identities and minimising the ability of gang members to threaten them.

In these extremely difficult times of spiralling gang violence, it is important to focus our efforts on the things that we can do, and not get caught up with things that we legally can't do, particularly when they would be so very time consuming that they would take our collective attention away from the one thing that will make a huge difference in our ability to dramatically reduce gang violence quickly – enacting Canadian anti-gang legislation as soon as possible.

Kevin Comeau, a Canadian, has lived in Bermuda since 1989 where he worked as a corporate lawyer until his retirement in 1999. Mr. Comeau is the holder of a Permanent Residency Certificate and now directs much of his effort towards the development of social policy proposals, particularly proposals to reduce the gap between the haves and have-nots in Bermuda. On Tuesday he wrote of the need to introduce Canadian anti-gang legislation before trying to negotiate a truce between rival gangs.