During Tuesday’s debate on overhauling the Criminal Procedures Law, Members were asked to make wide-ranging changes to the way trials are run and how defendants move through the justice system.
Home Affairs Minister Kristina Moore said the approval of the law, which had not been updated since 1864, was a ‘historic moment’ and would change the ‘way we see justice done in our courts’.
Among measures which were approved were moves to prevent rapists and child abusers from cross-examining their victims in court and expanding the pool of people who can be called to serve on juries, with those aged 18 to 71 now able to be called to jury service.
Her proposals included a move to allow the Attorney General to call a retrial in instances where a jury could not reach a majority 10-2 verdict.
However, Members backed the Education and Home Affairs Scrutiny Panel, which argued that the potential media attention of the first trial, a lack of court resources and disproportionate shift in favour of the prosecution meant that retrials should not be held where there is a hung jury.
Deputy Sam Mézec, who chaired the Scrutiny sub-panel, said: ‘We are saying if you cannot convince ten people of your case, then you haven’t met the standard of proof.
‘The question then to ask is why should you get a second bite of the cherry?’
He added that the large amount of media publicity which usually surrounds a Royal Court trial could prevent a defendant from receiving a fair hearing on the second occasion and that a lack of available courtrooms and staff to hold jury trials would stretch resources.
Senator Sir Philip Bailhache, a former Bailiff, agreed that retrials should not be brought in cases where juries could not reach a majority. ‘If a jury, by a majority, cannot agree, then a defendant is entitled to be acquitted,’ he said. ‘I have heard no rationale for changing that rule.’
Despite Deputy Moore and Attorney General Robert MacRae arguing that retrials would be enforced only in very rare circumstances, Members voted by 26 votes to 19 against the move.
And despite some Members having major concerns about changes which require a defendant to outline their case, the rest of the law changes went through as the Home Affairs Minister planned.
Neville Benbow, chief executive of the Law Society, attempted to persuade Members that forcing defendants to provide a defence case statement would compromise their right to remain silent. He wrote to all sitting politicians to urge them to reject that clause.
He said: ‘Requiring a defendant to state their case is wholly incompatible with the ability of a defendant to maintain their right to silence and, in our view, is likely to represent a breach of their human rights under the European Convention on Human Rights.
‘We urge States Members to implement an amendment to the Draft Law so as to protect the absolute right of a defendant to silence, throughout the process, such that they may, but are not obliged to, provide a defence case statement and that, if they elect not to do so, no adverse inferences may be drawn.’
And while his words found support from 13 States Members, the proposals were ultimately adopted.
How they voted
FOR: Senators Bailhache and Ferguson; Constables Gallichan, Paddock, Le Sueur-Rennard, Le Maistre, Taylor and Le Sueur; Deputies Martin, Southern, C Labey, Le Fondré,
K Lewis, Noel, Vallois, Higgins, Maçon, Mézec, Renouf, R Labey, Wickenden, Brée, McDonald, Johnson, Truscott and McLinton. (26)
AGAINST: Senators Routier, Ozouf, Maclean, Gorst, Farnham and Green; Constables Crowcroft, Refault, Mezbourian, Pallett and Le Trocquer Deputies Hilton, Pryke,
Pinel, Luce, Moore, Rondel, A Lewis and Norton. (19)
