The jury system in Malta was introduced under British rule and has been with us in criminal trials ever since. It is aimed at putting the law in people’s hands within the framework of a set of procedural rules.

In other words and in the case of serious offences, the judge cannot just decide on the facts of the case and sentence you to jail at his own instance. Before this happens, nine people chosen at random, known as jurors, must first be convinced that you indeed committed the crime and that you deserve to be punished for it. The accused has the option not to face a trial by jury but instead to have his or her case heard by the presiding judge alone.

Our laws of criminal procedure lists down a number of reasons why a juror may be exempt from serving as such. Although the list is quite exhaustive, the odd instance may arise that would call for a ruling.

Let us say that you are called to serve upon a trial by jury and during the proceedings you realise that one of the parties, the alleged victim for example, is known to you.

What should you do? Do you keep the information to yourself or make it manifest to the presiding judge there and then? Would it make a difference if this acquaintance was a casual one and went back in years? Is it you who should decide what to do? What is expected of the presiding judge in such a case?

There is no doubt that a lot of responsibility rests upon the way such a sensitive disclosure during the proceedings is handled by the presiding judge. One such matter came up before the courts in Norway involving a charge of attempted rape.

On September 18, 2008, a criminal city court in Norway found the accused guilty of attempted rape of another person in a car parked near a patrol station and sentenced him to one year’s imprisonment. The accused lodged an appeal before the Norwegian High Court on a number of points.

Our laws of criminal procedure lists down a number of reasons why a juror may be exempt from serving

During the proceedings, one of the jurors informed the presiding judge that she had casually become acquainted with the victim many years back when both of them used to accompany their young children to school events. The juror also said that back then she had formed the view that the victim was “a quiet and calm person”.

Following a request on the part of the defence lawyers for the juror’s removal on grounds of a lack of fair hearing, the High Court decided that the juror ought not to withdraw.  It held that it could not see that what was disclosed by the juror was capable of influencing her overall assessment on the question of guilt or otherwise of the accused. The accused lodged a final appeal before the Supreme Court in Norway which was also turned down.

The court pointed out that a member of the jury might be disqualified especially if he or she had particular reasons for identifying with the victim. It observed, however, that the juror in such an instance had been in contact with the victim sporadically many years back. Therefore, it held that the impression of the victim was not such as to influence her assessment and for that reason the appeal was rejected.

Undaunted, the accused lodged a complaint before the European Court of Human Rights in Strasbourg based on the absence of a fair trial due to the participation of a juror who lacked impartiality (Kristiansen v. Norway, decided on December 17, 2015).

Complainant’s lawyers argued that the trial had been unfair and in breach of Article 6.1 of the European Convention on Human Rights.

The European Court noted that there was no information or anyone arguing that the presiding judge sought to redirect the jury, for instance, by impressing on the jurors to rely on evidence presented in court alone and that they must not allow any other factor to influence their decision.

Having regard to the cumulative effect of all these factors – the content of the statement by the juror in question, its timing, the decisions not to discharge the juror or to redirect the jurors as above stated – the court held that there were justifiable grounds on which to doubt the High Court’s impartiality, which shortcoming could not have been alleviated by any of the general safeguards that were adduced by the lawyers representing the respondent State.  For this reason the court held that there was a violation of article 6.1 of the convention.

Stefano Filletti is a lawyer and the Head of Department of Criminal Law at the Faculty of Laws, University of Malta.

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