Trial by jury is considered to be the only democratic process that exists in the judicial branch of the state. In a trial by jury, it is the lay persons - the jurors - who determine whether an accused person is guilty or otherwise. It is then up to the presiding judge to acquit the accused if the jurors find that the prosecution has not proved its case, or to condemn the accused if the jury verdict has indicated guilt. Nevertheless, the presiding judge is not bound by the votes reached in a verdict of guilty when awarding the punishment.

Of course, a lot of people ask: is the jury system still relevant today?

First, they argue, that judges are trained for the job; jurors are not. As a matter of fact, the jurors do not receive any training whatsoever before they are selected for jury service. Their training is on the job training that, praiseworthy as it might be, leaves much to be desired.

Second, jurors are held incommunicado from their loved ones for the entire duration of the trial by jury that can span over two days or even a couple of weeks, if not months. When a trial by jury spans over a long period, the question arises whether jurors are being kept by the court under illegal arrest, for no juror is free to stand up to tell the court, 'Enough is enough. I want to leave'. Jurors are therefore prisoners of the court that have been given a court sentence of detention without however being afforded due process of law.

Third, jurors are paid a ridiculous sum of money per day. Imagine a self-employed person whose livelihood is completely dependent upon his or her job, is kidnapped by the judicial system, and not allowed to earn his or her living; instead, s/he is compensated a ridiculous sum. The Payment of Fees to Jurors Regulations, Subsidiary Legislation 9.6, provides in relevant part the following remuneration to a juror that ranges between ten euro to forty euro per day as follows:

Payment of fees to jurors not in receipt of salary or wages

   3. The registrar shall, as soon as may be after every trial by jury, pay to a juror a fee of thirty euro (€30) for every day of service, or part of such day, in of which the said juror was not in receipt of any salary or wages from his employment when the trial does not extend beyond fifteen working days and forty euro (€40) for every additional day of service, or part of such day, as abovementioned beyond the said fifteen working days.

Payment of fees to jurors in receipt of salary or wages

   4. The registrar shall, as soon as may be after every trial by jury, pay to a juror a fee of ten euro (€10) for every day of service, or part of such day, in of which the said juror was in receipt of - (a) any salary or wages from his employment; or (b) a pension; or (c) if the juror was unemployed; or (d) if the juror was a housewife

Imagine if this person is self-employed and if s/he does not work, then no income is earned. Imagine if s/he has a number of employees who s/he has to pay their wages apart from the usual utility bills that each business must pay. Who is going to pay the wages of these employees and the utility bills? The Judge presiding the jury, the Attorney General, the justice minister, the Advocate for Legal Aid or will the juror have to lump all these bills him/herself although in the period that s/he was performing jury service the business had to temporarily shut down, if not go bust?

Fourth, the juror is treated like a prisoner for all intents and purposes of law. If s/he refuses to enter an appearance when called to serve as a juror, s/he is fined. Once performing duties, s/he cannot use internet or a mobile phone to read the latest news. The newspapers that the juror is allowed to read are censored by the court registrar. If s/he needs to go home or to visit a relative to hospital s/he is accompanied - like a criminal - to that place and the court marshal will ensure that s/he has limited communication with the outside world.

The legal status of the juror is of a person who has been kidnapped by the state and is detained without trial for a period to be determined at the court's pleasure. Needless to say, under these circumstances of forced labour or slavery, nobody would want to serve the justice system that is itself oppressive and suppressive of their freedom of expression, freedom of movement, freedom of assembly, the right against illegal arrest, the right against exploitation and slavery.

Whilst the jury system made sense several centuries ago, today it is a different matter. Judging is a craft in its own right and our Judges and Magistrates, once appointed, are trained for the job by the Judicial Studies Committee. It is the duty of this Committee to ensure that all the judiciary is well versed with the recent developments in the law, both locally and abroad, at least in those branches of the law where foreign law would be relevant to Maltese Law such as in the case of European Union Law, Public International Law, and foreign law that has been emulated in the Maltese legal system. The judiciary's training is continuous and ongoing. Our judges and magistrates, therefore, do not stop studying once appointed to judicial office. On the contrary, they are expected to be well trained and the state - through the Judicial Studies Committee - provides such training.

Fifth, nowadays jury trials have become very complex. First, it is only the most serious cases that reach a trial by jury and thus cases tend to be very complex. Second, certain trials by jury are very technical as in the case where the prosecution is bringing forward charges related to misappropriation, bribery, money laundering, and other financial crimes that require a robust background in forensic accountancy. How will jurors grapple with the various balance sheets, financial reports, audited accounts, profit and loss accounts, etc. when they have never ever seen - let alone understand - these documents?

In the case of the judiciary, although a judge or magistrate might not necessarily be a forensic accountant, s/he has the power to appoint such an accountant to advise the court on any matter that the court requires to be advised upon.

This article is not arguing that the jury system should be abolished even if this author would always prefer a professional judge or magistrate who is well trained for the job to rule on matters of guilt or otherwise. What this article is proposing is that government establishes a Commission to study in depth the jury system. Should it be retained various enhancements would be required such as paying jurors a more decent honorarium for service to the state from the first day of service straight to the last day; that jury trials be restricted to only the most serious criminal offences such as political crimes (treason, sedition, official secrecy, terrorism) and all those crimes whose maximum punishment is life imprisonment. This proposal must consider the astronomical amount of pending trials by jury and the excessive time required from when a person is charged in court the first time till when the trial by jury commences that takes years on end. Clearly, jury trials have become unmanageable.

Should the jury system be done away with, amateurism is removed from the judicial system, and higher quality standards approved, one has to ensure that there are sufficient safeguards to hold the judiciary accountable for any abuse of power on its part because concentrating all criminal law decision making power in the judiciary - although better than the jury system - might have its own deficiencies that only transparency and accountability can address. Hence the requirement of an in-depth study to consider the future of jury trials.

Kevin Aquilina is Professor of Law, at the Faculty of Laws of the University of Malta