Amendment to the laws …TRIAL BY JUDGE ALONE

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In his attempt to speed up the system of justice, Attorney General Faris Al Rawi is seeking to have criminal trials adjudicated by judges alone.

At the moment, trials in the High Court are done before a judge and jury. With his new plan, Al Rawi is giving accused persons an option of trial by judge alone, or by judge and jury.

The debate on the Miscellaneous Provisions (Trial by Judge Alone) Bill comes up shortly in the Senate. The amendment to the laws will also see the constitutional three-fifth majority rule deleted, so the Government can pass it with a simple amendment. This obviously is going to be met with resistance from the Opposition Benches.

This comes on the heels of Government’s plans to abolish preliminary inquiries and to replace it with paper committals, not to be determined by a Magistrate or judicial officer, but by the Office of the Director of Public Peosecutions (DPP). That debate is before the House of Representatives, and the three-fifths majority rule has also been deleted there as well.

The purpose of the Trial by Judge Alone Bill is to amend the Offences Against the Person Act, Chapter 11:08 and the Criminal Procedure Act, Chapter 12:02.

The Bill contains 5 clauses.

Clause 3 of the Bill would amend the Offences Against the Person Act, Chap. 11:08 –

(i) in section 4A(6), by providing that in a trial for murder, a jury or Judge may declare that an accused person was convicted by them or him on the ground of abnormality of mind, and that the Court may direct that finding to be recorded, instead of passing such sentence as is provided by law for that offence;

(ii) in section 4A(7), by inserting after the words “the finding of the jury” the words “or the Judge, as the case may be,” which would, in effect, provide that a report of a jury or Judge shall be reported as soon as practicable by the Court;

(iii) in section 4B, by providing for a jury or Judge, as the case may be, to make findings and determinations in their or his opinion;

(iv) by repealing section 19 and substituting a new section 19 which would provide that in a trial for an offence under section 17 of the Act, a jury or Judge may find an accused person guilty of the offence under section 18, if the jury or Judge is satisfied of certain grounds provided for in the new section; and

(v) in section 58, by providing for a jury or Judge, as the case may be, to make a finding.

Clause 4 of the Bill would amend the Criminal Procedure Act, Chap. 12:02 –

(i) by repealing section 6 and substituting a new section 6 to provide for the mode of trial of an accused person. This new section would provide that an accused person committed for trial shall be committed on an indictment by a Judge and jury unless he elects to be tried by a Judge alone. This option may only be accessed by an accused person if the Court is satisfied of certain grounds provided for in the new section. This new section would also provide that if an accused person elects to be tried by a Judge alone or by Judge and jury, he cannot subsequently apply to be tried in a different manner;

(ii) by inserting after section 6, two new sections, 6A and 6B. Section 6A would provide that in a trial by Judge alone the jurisdiction of a Judge is the same afforded to a Judge in a trial by jury, as well as, the jurisdiction of a jury in a trial by jury. Section 6B would provide that references in other written laws to a jury and trial by jury inter alia shall be read with such adaptations to bring the references into conformity with a trial by a Judge alone, as the case may be;

(iii) in section 37, by providing that a Court shall order a jury for the trial of an accused person unless the Court had made an order under section 6(2) that the accused person may be tried by a Judge alone;

(iv) by inserting after section 42A, a new section 42B, which would provide that a Judge shall give a written judgment on his decision at the conviction or acquittal of an accused person. The new section also provides what the Judge’s written judgment is to contain, and states that the accused person may appeal the Judge’s decision to the Court of Appeal;

(v) in section 62(2), by deleting the words “a jury” and substituting the words “a Judge”;

(vi) by repealing sections 62(3), 62(4) and 62(5);

(vii) by repealing section 62(6) and substituting a new section 62(6) which would provide that, in a case of an expectant mother convicted of a capital offence, a Judge shall determine whether the woman is pregnant or not on written or oral evidence given by at least two medical practitioners;

(viii) in section 62(7), by deleting the words “jury find” and substituting the words “Judge finds”;

(ix) by repealing section 63(2) and substituting a new section 63(2) which would provide that in a trial of a woman for the murder of her child under the age of twelve months, a jury or a Judge, as the case may be, may determine that the woman caused the death of her child by reason of her mind being disturbed as a result of her not fully recovering from the birth of her child or the effect upon her of the lactation consequent upon the birth of the child; and return a verdict of infanticide;

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FARIS AL RAWI 

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