by Dr Rene Darmanin – Junior Associate
“Gentlemen of the Jury”, by John Morgan”, Thomas Ball, 1864; Sir Stafford Cripps; by descent in the family; Mallams, Oxford, 2005; Thomas Coulborn & Sons.
The famous American philosopher Lysander Spooner once said: “The trial by jury is a trial by ‘the country,’ in contradistinction to a trial by the government. The jurors are drawn by lot from the mass of the people, for the very purpose of having all classes of minds and feelings, that prevail among the people at large, represented in the jury”
The Criminal Court is the only court which permits the public to participate directly in the administration of justice through trials by jury. In a trial by jury, jurors are considered as the triers of facts.
The trial by jury in Malta was first introduced in 1815 and was limited to trials in the court of piracy in order to avoid abuse of power by the admiralty.
Nowadays, domestically, the use of juries is restricted to criminal trials before the Criminal Court with respect to criminal offences which exceed the original competence of the Court of Magistrates.
Nonetheless, a whole lot of proceedings precede the actual trial by jury. As a matter of fact, proceedings before the Criminal Court commence when the Attorney General files the so-called Bill of Indictment. The bill of indictment is drawn up by the Attorney General who prosecutes on behalf of the Republic of Malta before the Criminal Court. This document is founded on the evidence collected by the Court of Magistrates in the course of the compilation of evidence and outlines the offences with which the accused is charged and the punishment described by law for the respective offence.
After the said bill of indictment is served upon the accused, the accused may file any preliminary pleas allowed by law within 15 days from the day of service. It must be pointed out that when deciding on any preliminary pleas raised at this stage, a judge sits alone in the Criminal Court.
Upon being served with the notice of the date of trial, the accused is allowed 10 days to file a note in the registry of the Criminal Court opting to be tried without a jury. However, this is not always possible since for example in a trial where the punishment demanded in the indictment is of imprisonment for life, the accused cannot opt to be tried without a jury.
Once the accused pleads not guilty and once it is determined that the said person has not opted for his trial to be conducted without a jury, the court appoints a date for the trial by jury to take place and subsequently a jury would be empanelled.
The panel of the jury consists of nine jurors and two or three supplementary jurors. One of the nine jurors would be the foreman. The idea behind supplementary jurors is obvious: in the course of the trial any number of unforeseeable events may occur which could make it impossible for a juror to continue serving (sickness, death of relatives etc). In such an eventuality, the juror is discharged and replaced by a supplementary juror.
Not each and every Maltese citizen may serve as a juror. In fact the Criminal Code lays down certain restrictions which prohibit a person from serving as a juror. The following are amongst said restrictions:
• Persons under the age of twenty-one;
• Interdicted or Incapacitated persons;
• Undischarged bankrupts;
• Persons who are under trial for any crime.
On the day of the trial, jurors are drawn up randomly through a computerised system from a list of jurors compiled by the Commissioner of Police or his representative, the Senior Magistrate, the Attorney General or his representative, the President of the Chamber of Advocates and the President of the Chamber of Legal Procurators.
The first to be chosen is the foreman, followed by the ordinary jurors and finally the supplementary jurors are called. If a person summoned to serve as juror fails to appear in court on the date and time indicated in the writ without just cause, s/he may be found guilty of a contempt of court and fined.
As soon as a juror is called, both the Attorney General and the accused may challenge such draw and the person challenged is excluded from serving as a juror at the trial.
Challenges may be either peremptory or for cause. Challenges are peremptory when made without reason assigned. On the other hand, challenges are for cause when made by assigning a reason, and their effect shall be that, if such reason is approved by the court, the challenge shall be allowed and the person shall be excluded. Both the Attorney General and the accused are allowed three peremptory challenges.
Once the jury is empanelled, a number of restrictions are imposed on the jurors. From a practical standpoint, the jury is segregated from the general public and after court sessions, jurors are sent to a hotel accompanied by the registrar and court bailiffs. On the first day of trial, at the end of the court session, jurors are accompanied to their homes by the court bailiff to collect items of clothing and other personal belongings.
Despite the fact that the law is silent on this particular matter, the use of mobile phones and other means of technological communication is prohibited. Jurors are also constrained from following Maltese media in order not to be unduly influenced.
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