I have already had the opportunity to comment on the jury system a few weeks ago ('Does the jury system breach human rights', The Malta Independent on Sunday, 16 August 2026). In that piece I had recommended that the government appoints a Commission of Inquiry to report on the jury system and to make recommendations thereupon.

The jury system is a relic of colonialism. It was imposed on Malta by the British. It does not necessarily mean that what works in the United Kingdom necessarily works in Malta or that it is still valid today. Further, the British have along the years made changes to their jury system. We have not followed them in this respect. If one studies the jury system, one finds several shortcomings in addition to those listed in the 16 August 2026 contribution.

First, the jurors are much more susceptible of being influenced by an advocate - whether on the prosecution or on the defence side - than a judge who is ordinarily dealing with such cases and trained for the job. The prosecutor or defence counsel can impress his or her personality upon jurors, irrespective of the cogency of his or her argument/s. It could be that the prosecutor is very assertive whilst the defence lawyer is taciturn. The former will influence the jurors by far more, especially when jurors might have no experience at all of a jury trial contrary to the prosecutor or defence lawyer. An excellent rhetorician can sway the jury in favour of his or her argument, even if it is legally flawed.

Second, there is no mandatory requirement, as in the case of the judiciary, for a juror to abstain from acting in that office if s/he has a conflict of interest. If the juror does not raise the conflict of interest him/herself and the prosecutor and defence counsel are not aware thereof, then the juror continues to sit on the jury notwithstanding the conflict of interest. Contrary to the judge, the juror is an unknown factor. S/he is a private citizen not a public figure. If the prosecutor or accused is aware of this conflict of interest but knows that the juror as his or her friend will vote in his or her favour - irrespective of all evidence produced and the judge's direction to base the jury verdict on the evidence produced at the trial - how will it be possible to ascertain that there has been a miscarriage of justice? In the case of a judge, there are more controls established by the law to guarantee impartiality and justice.

Third, the jury system gives rise to forum shopping. It is possible for the prosecutor and defence counsel to attempt to shape to their liking the composition of the jury through the three peremptory challenges allowed by law where no reason is required to be given to remove a juror from serving. For instance, if a man has raped a woman, the prosecutor would prefer an all-female jury that can empathise with the victim whilst the defence lawyer would prefer an all-male jury that can empathise with the accused.

These machinations that are adopted by the prosecutor and the defence counsel, legal as they might be, are not conducive to the proper dispensation of justice. It is a case where the law and justice depart from each other. Contrary to the three peremptory challenges allowed to the prosecutor and another three to the accused, there is also the challenge for cause which is by far more objective than the subjective peremptory challenge. Further, the three peremptory challenges are multiplied by the number of accused. In other words, the prosecutor only enjoys three peremptory challenges but if there are ten accused then they enjoy 30 peremptory challenges and are in a better position to shape the jury composition.

Fourth, there are inconsistencies in proceedings. There are situations where jurors, once impanelled. are allowed to go home when the court is not in session during the iter of the jury trial, and at times are sequestrated by the court until the jury is over. There are situations where one and the same crime is tried by a judge without a jury in one case and that same crime is tried by a jury in another case.

Fifth, there is the fundamental problem of impartiality. Although a lot of emphasis is placed on jurors that, once impanelled, they should not read news or be in communication with any person that can influence them in their verdict, no measure is taken to remove the bias that they would entertain prior to the commencement of a trial by jury. As we all know, the compilation of evidence takes years on end before the Court of Magistrates, and the jurors-to-be are privy to all the reporting, commenting, biases, prejudices, and slants that take place before the actual trial by jury commences and their impanelling. At day one before the trial by jury begins - and irrespective of all the evidence produced in court and all the directions of the presiding judge that they have to limit their decision only to the facts available during the trial - the jurors might have already decided how they intend to cast their vote.

Sixth, jurors - contrary to the judiciary - are not trained for the job. So why should a commoner who is not trained for the job decide an accused person's fate? When a person undergoes a surgical operation at Mater Dei, s/he is not operated upon by a judge or a magistrate but by a professional medically qualified and experienced surgeon. But in the case of jurors, they are picked up from the street, secluded together for a couple of days or weeks, and requested to decide matters which in their daily life, if left free, they would not be willing to decide. Jurors are kept under duress: they must decide a case otherwise they are fined or imprisoned. They have no choice.

Seventh, jurors are more amenable to being corrupted. In the case of a judge or a magistrate, if s/he is corrupted, they lose their job and are imprisoned. As the Italians say, dalle stelle alle stalle. Quite a downfall. No judge worth his or her salt would want to traverse this road. But as a person might serve only once in a lifetime as a juror, s/he might be more prone to being corrupted. Imagine if you are offered one million euro to acquit an accused person instead of the ten euro per day that the government pays for jury service.

Eighth, whilst judges are paid a handsome salary so that the judicial system can attract the best legal minds to dispense justice, the jurors are paid a pittance and might also be afraid to convict an accused person because the accused might kill or harm them once out of prison or do the same to their family. This subtle pressure that jurors experience makes the whole jury system unfit for purpose. Further, the law states that jurors are entitled to travelling expenses but when one looks up the law that regulates such matter one finds that the fee is zero because the cheapest way to commute from a village or town in Malta to the capital city is by bus that is today free of charge. If they go to court with their private vehicle or by taxi they would not be able to claim the expense as this is not the cheapest way to go to Valletta.

Ninth, jurors do not give a reason for the verdict, judges do.

We have left too much time pass since the jury system was introduced in 1812 to revise it. That is why it is no longer appropriate for our needs. Fundamentally, it does not satisfy human rights tests of impartiality, it does not allow the accused person the right to have his or her case decided by a trained judge, does not respect the dignity of jurors, and is more conductive to miscarriage of justice than cannot always be fixed than with courts presided by judges. As the Maltese expression goes "bħal kull ħaġa tajba, trid tagħtiha lil min jaf jiekolha'. In this case, the jury system is not fit for purpose.

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