From time to time, calls to restructure the jury system are made. More often than not this follows acquittals by jurors in cases where some deem the evidence produced in court to suggest otherwise. One high profile case was that of the attempted murder of a close aide to the Prime Minister. On the victim's car the police had found a palm print matching that of the accused who was acquitted. It is widely held that it is better to have a guilty man walk free than an innocent man found guilty. Yet, should efforts not be made to create a more watertight system so that criminals do not escape due punishment? Natalino Fenech discusses the issue with some of the players involved.

Parliamentary Secretary Carmelo Mifsud Bonnici believes there is some fine-tuning to be done to the jury system and the White Paper on criminal justice reform addresses some of the issues.

"I am pleased to say that the response to the White Paper has been overwhelming and we have had submissions not just from law-oriented people but from lay people and other organisations too," he said.

Asked about whether he believed cases such as drug trafficking and murder should be dealt with by a panel of judges, or judges and magistrates, rather than jurors, Dr Mifsud Bonnici said the accused had a right to choose whether he would be tried before a judge and jury or only a judge.

"I think we will be complicating things if we did that," he said in answer to the question. "In our system, three judges sit on the Appeals' Court. What do you do then, increase this to six judges?

"The system is good. It just needs to be updated, which is what we are trying to do. If we train jurors, if they attend a number of lectures, they will have a clear idea of what they are in for, what is expected of them, what is the role of the judge, prosecutor and defence, the rights of the accused.

"Anyone who has worked in a jury knows that jurors are sometimes distracted. The questions they ask sometimes shows they have not understood basic principles, even though the judge, prosecution and defence would have repeatedly addressed them on the same issues.

"We have to pay more attention to the selection of the foreman of the jurors. Preferably he should be versed in law. We have had howlers in verdicts. We have had statements made by jurors that had no basis at law. A seasoned foreman of the jury could guide jurors to avoid such pitfalls," Dr Mifsud Bonnici said.

According to the parliamentary secretary, the main advantages of a jury system are that jurors are common people who are not detached from daily life, as a judge or lawyer might be.

"The advantages are that they can understand better human emotions and concepts such as self-defence. They can appreciate a person's body language and realise if one is telling the truth or not.

"For a lawyer, the jury is where one exercises one's profession the most.

There is the skill of asking questions and jurors' attention can be channelled to certain aspects of the case."

The main drawback of a jury system, he said, was that there was no control on the influence that could be exerted on jurors.

"You have no guarantee that a juror would not have read media reports of the compilation of evidence against the accused. The problem with such media reports is that they are very selective. They highlight what they think readers want to read most, but in a jury, every detail is important," Dr Mifsud Bonnici said.

Asked whether he thought witnesses, especially civil witnesses, should be trained so as to become accustomed to the court room environment rather than be thrown in at the deep end, as happens in each case, Dr Mifsud Bonnici said this was a very delicate issue.

"Witnesses are there to tell the truth, the whole truth and nothing but the truth. That is the oath they take. It is wrong for a witness to have a preconceived frame of mind to sustain somebody's case, be it the prosecution or that of the defence. They have to testify to what they saw, heard or know about the case. There should be no problems if they do that."

The system 'works well'

The Malta Labour Party's spokesman on home affairs, Gavin Gulia, thinks that the jury system "works pretty well".

"Our system does not guarantee absolute justice. That is why it allows for an appeal and a retrial in certain circumstances. Of course there may be miscarriages of justice even when a case reaches these stages. However, procedures cannot prolong indefinitely so there must be a beginning and an end to all cases.

"I think it works pretty well. Of course there may have been occasions in the past where verdicts were not according to expectations. But then nobody grumbled.

"This talk about changing the jury system came about because the former Prime Minister did not accept the verdict reached in the Meinrad Calleja case, hence tainting the jury system with partisan politics.

"Worse still, it appears that the government is hell bent on appeasing the former Prime Minister. I only hope that the changes will affect detail, not substance or principle," Dr Gulia, a former Minister of Justice, said.

Asked whether he believed drug trafficking cases should be dealt with by a panel of judges instead of jury, Dr Gulia said he believed it was wrong to discriminate between crimes.

"There is already a distinction between crimes that may be prosecuted before a magistrate and others before a grand jury. There is no need to discriminate further especially between serious crimes. The law should stand as it is."

Asked about the main advantages of a jury system, Dr Gulia said the practice of being judged on fact by one's peers was good. "Why should we assume that jurors err while judges don't? There have been instances where judges erred on matters of law."

Asked about its drawbacks, Dr Gulia said the jury system could be improved.

"The method of selecting jurors is a case in point. I never really liked the way the Attorney General and defence counsel object or accept jurors for no reason at all before the trial commences, as if they were choosing their favourite candidates. The perception isn't nice.

"The system is good but can be improved in terms of detail. Jurors should remain the arbiters of fact."

Should witnesses be accustomed to the court environment before testifying? Dr Gulia said this environment was rather hostile and provoked a feeling of awe in a witness.

"But then a witness should not feel like he is drinking a cup of tea. Justice is a serious matter and the environment should be such that witnesses do not take proceedings for granted," Dr Gulia said.

A juror's perspective

Two people who served on a jury, one in a murder case and the other in a drug trafficking case, said the biggest problem a juror faced was the dilemma on whether he would want to put the accused in jail.

"It is easy for one to say it's an easy decision to find the accused guilty. But actually it is very difficult, even when you are convinced of guilt," both jurors agreed.

One of them said the fact that jurors are inexperienced is a big drawback and in spite of judges and lawyers explaining legal concepts, there is often confusion both while deliberating as well as in one's mind. When there is doubt, jurors prefer to err on the side of caution, that is, in favour of the accused.

Fear also plays a part. In one case, a jury acquitted the accused person who had been found in possession of a significant quantity of drugs. A juror in the case said he was afraid that the accused would have otherwise sought revenge on the jurors.

"On one occasion during the trial I called home and my wife told me to be careful about what we were doing because she had seen two strange men in a car outside our house. She did not like the way the men looked and was scared. The effect rubs off on you. It is difficult to be a juror."

Not everyone wants to be a juror

Lists of jurors are published in the Government Gazette. Jurors end up on such lists after a selection process that starts in police stations.

The police submit lists of people to a board made up of two magistrates, the Police Commissioner and the Court Registrar. The board meets annually and a temporary list is published in August. Whoever appears on the list has 15 days within which to ask the court to be struck off, giving the reasons why the name should be removed.

Sometime in mid-November, the final list of jurors who may be called to serve in the following year is published. In December a list of at least 50 jurors to serve in January is drawn by lot and the same procedure is followed every month.

Before a trial by jury starts, jurors are summoned to the court room and the jury is formed. It is made up of a foreman of the jury, eight ordinary jurors and six reserves.

But not everyone likes to be a juror. While those in the public sector are given time off from work, the self-employed have to miss work. Jurors are not paid for the first three days of the jury and are then paid Lm10 a day for their service, unless they are receiving a salary, in which case they only receive Lm3 a day. After 12 days, the rate goes up to about Lm15.

Maurice Zarb Adami, a Maltese national who lives in Attard, a pharmacist by profession and a lecturer at the university, has filed a case before the European Court of Human Right claiming discrimination in the jury selection process.

Mr Zarb Adami said he was placed on the list of jurors in Malta in 1971 and remained on the list until at least 2002. Between 1971 and 1997 he served as both a juror and foreman in three different sets of criminal proceedings.

In 1997 he was called again to serve as a juror but failed to appear and was fined Lm100. He failed to pay the fine and was summoned before the Criminal Court, where he pleaded that the fine imposed on him was discriminatory and argued that the Maltese system penalised men and favoured women, as during the preceding five years only three per cent of women had served as jurors as opposed to 97 per cent of men. The civil and appeal courts had both rejected his claims.

Lawyers have their say

Joe Giglio

"If I had to change something about the jury system it would be the selection process. Jurors should be more qualified and know what they are there for.

"When selecting jurors, the prosecution and defence should be given the opportunity to challenge the selection of a particular juror not merely by looking at his or her face for a few seconds, as happens now.

"There should be a sort of preliminary hearing to verify that prospective jurors are really impartial."

Manwel Mallia

"The principle of being judged by fellow citizens is sacred and should remain so. The way jurors are chosen should change, and one should ensure that jurors are not influenced one way or the other.

"In my opinion, when changes are being made to the penal code, these should not be changed through a White Paper. There should be a commission to study the issues rather than have a White Paper with suggestions the provenance of which are unknown, whether from the Attorney General's Office or otherwise."

Michael Schiriha

"Defence lawyers should have the list of potential jurors long before a trial starts so that they can scrutinise who the persons are to ascertain that they have no bias against the accused.

"The judge should be present while jurors are deliberating to guide them on points of law. Alternatively, a lawyer should be present with jurors throughout in order to guide them on such matters.

"The defence should also have the right to produce its experts, especially when a case hinges on forensic evidence.

"Otherwise the jury system is the most democratic one, which is not answerable to anyone."